JOHNA.SEAVERNS 


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9090  014  558   106 


jppM.^' FiM^  Library  ol  Velennaiy  Medicine 

CilMnii^  School  of  Veterinary  MedldliBJtfx 

Tufts  University 

aOOWeetboroRoad 

MorthOfaAon.  MA  01830 


VETERINARY  MEDICINE  SERIES 

No.   10 


ESSENTIALS 

OF 

VETERINARY  LAW 

BY 
HENRY  BIXBY  HEMENWAY,  A.  M.,  M.  D. 

Fellow,  American  Academy  of  Medicine;  Fellow,  American  Medical 

Association;  Member,   American  Public  Health  Association; 

Member,    American    Association  of   Railway  Surgeons; 

Member,  American  Statistical  Association;  etc..  etc. 

AUTHOR 
Legal   Principles  of  Public   Health  Administration. 


CHICAGO 

AMERICAN  JOURNAL  OF  VETERINARY  MEDICINE 

1916 


so 


Copyright  1916 

By 

HENEY  BIXBY  HEMENWAY. 


PREFACE 

Following  the  publication  of  my  "Legal  Principles  of 
Public  Health.  Administration"  there  came  a  request 
for  a  handbook  which  could  be  used  as  a  text  in  veteri- 
nary schools  and  agricultural  colleges.  About  one-third 
of  the  graduates  from  the  veterinary  schools  take  the 
examination  for  entrance  into  the  service  of  the  national 
government,  but  up  to  the  present  time  there  has  been 
no  small  text  which  gave  them  the  needful  information 
as  to  their  duties,  responsibilities,  and  limitations  of 
authority  in  such  service;  and  scientific  farmers  need 
a  knowledge  of  their  legal  rights  and  liabilities  in  ani- 
mal husbandry. 

In  writing  the  present  work  I  have  kept  in  mind  the 
needs  of  several  distinct  classes,  and  have  consequently 
divided  it  into  four  parts.  The  brief  statement  of  the 
general  legal  principles  involved,  as  found  in  Part  I, 
is  essential  for  all. 

Veterinarians  in  private  practice  need  to  know  their 
legal  rights,  responsibilities,  and  liabilities.  The  best 
insurance  against  claims  for  damages  is  found  in  a 
knowledge  of  the  requirements  of  the  law.  The  writer 
has  had  his  attention  called  to  several  cases  in  which 
veterinarians  have  incurred  liabilities  by  innocently 
violating  common  legal  principles.  It  is  a  mistake  to 
depend  too  much  upon  a  knowledge  of  enacted  statutes. 
The  common  law  is  more  frequently  violated  by  vet- 
erinarians. These  principles  most  applicable  to  private 
practitioners,  as  found  in  Part  II,  should  be  mastered. 

It  is  the  veterinarian  who  is  first  consulted  by  animal 
owners  when  an  animal  has  been  injured,  or  has  con- 

iii 


iv  PREFACE 

tracted  an  infectious  disease  through  the  negligence  of 
another.  "While  it  is  not  intended  that  the  veterinarian 
shall  take  the  place  of  a  lawyer,  still,  a  knowledge  of 
the  principles,  as  contained  in  Part  IV,  will  often  enable 
him  to  serve  his  patrons  better,  and  save  them  needless 
trouble  and  expense.  The  remainder  of  the  book  will 
be  found  useful  for  occasional  reference. 

Official  veterinarians,  whether  they  be  connected  with 
the  Bureau  of  Animal  Industry  in  the  Department  of 
Agriculture,  or  in  state  and  local  offices,  should  have  a 
clear  idea  as  to  the  limitations  of  their  authority,  and 
the  nature  of  their  responsibilities.  In  addition  to  the 
outline  of  their  legal  status.  Part  III  gives  a  condensed 
statement  of  the  present  regulations  of  the  B.  of  A.  I., 
in  the  handling  of  stock,  and  the  conduct  of  the  meat 
industry.  It  is  suggested  that  the  inspector  mark  the 
margins  of  his  book,  opposite  appropriate  sections,  with 
the  numbers  of  official  orders  applicable  where  fuller  de- 
tails are  needed.  For  example :  The  special  disinfectant 
applicable  in  a  given  case  may  be  changed  at  any  time 
by  scientific  advancement,  and  this  text  therefore  simply 
speaks  of  ''disinfectants."  The  inspector  may  increase 
the  usefulness  of  his  book  by  the  appropriate  notation. 

General  sanitarians  may  find  this  manual  useful  for 
occasional  reference,  though  for  them  it  is  not  intended 
that  it  will  take  the  place  of  a  more  ample  discussion 
found  elsewhere.  However,  some  sanitary  inspectors 
may  find  herein  as  much  as  they  need,  and  may  there- 
fore prefer  it  to  the  more  expensive  work. 

The  number  and  variety  of  actions  at  law  in  which 
stockmen  are  involved  seems  astounding;  yet  the  prin- 
ciples governing  are  not  numerous,  and  there  is  a 
general  uniformity  in  the  decisions  handed  down  from 
the  courts  of  appeal.  Stockmen  have  gained  a  reputa- 
tion for  lawlessness,  probably  more  because  of  ignorance 
of  the  simple  principles  of  law,  than  because  of  inherent 
wickedness.  Every  stockman  owes  it  to  himself  to  be- 


PREFACE  V 

come  thoroughly  familiar  with  such  matters  as  are  found 
in  Part  IV ;  and  he  will  frequently  find  that  reference  to 
the  remainder  of  the  book  will  answer  perplexing  ques- 
tions. 

Lastly:  The  general  uniformity  of  decisions  relative 
to  specific  points,  with  the  frequent  raising  of  the  same 
questions,  indicates  that  members  of  the  legal  profession 
must  have  sometimes  misled  their  patrons.  It  is  not  pre- 
sumed that  an  attorney  would  intentionally  deceive  his 
client,  but  it  is  easier  to  get  into  court  than  to  get  out, 
and  it  seems  probable  that  the  "case"  has  been  started 
as  the  result  of  the  error  of  a  lawyer  first  consulted. 
"Where  there  is  liability,  it  is  the  duty  of  the  attorney 
to  attempt  a  settlement  out  of  court.  It  is  hoped  that 
attorneys  practicing  in  rural  communities  will  find  this 
little  book  helpful,  not  as  an  exliaustive  exposition  of 
the  law  involved,  but  as  an  indication  of  the  general 
interpretation  bearing  upon  the  problems.  "We  have 
taken  care  to  verify  the  citations,  which  will  be  found 
more  ample  in  the  table  than  in  the  text. 

For  those  interested  in  a  more  complete  discussion  of 
administrative  law,  frequent  reference  has  been  made 
to  my  larger  work,  designated  simply  as  "Public 
Health,"  the  numbers  referring  to  sections  there- 
in. Cross  references  to  sections  of  these  "Essentials" 
will  be  found  to  greatly  assist  the  reader  in  mastering 
the  subjects  considered. 

Henry  B.  Hemenway. 

Evanston,  111. 

Dec.  27,  1915. 


AUTHORITIES  CITED 


Bannington — English  Public  Health  Administration. 

Blackstone's  Commentaries — Chitty  (Am.  Ed.). 

Brown    (Jethro) — Underlying   Principles   of    Modern   Legislation 

(1915). 
Burns'  Annotated  Statutes  of  Indiana  (1914). 
Cooley — On  Torts. 
Freund — Police  Power. 
Greenleaf— On  Evidence  (16th  Ed.). 

Hemenway — Legal  Principles  of  Public  Health  Administration. 
Hurd's  Eevised  Statutes  of  Illinois  (1914). 
Ingham — The  Law  of  Animals. 
Lawson — Law  of  Expert  and  Opinion  Evidence. 
McClelland — Civil  Malpractice. 
McGehee — Due  Process  of  Law. 
Mechem — Public  Officers. 
Meyer  Verwaltungsrecht. 

Mill — Eepresentative  Government   ("Everyman's"  Ed.). 
Keports  of  American  Public  Health  Association. 
E'eports  of  Attorney  General,  Illinois. 
Reports  of  Wisconsin  Agricultural  Experiment  Station. 
Revised  Statutes  of  the  United  States. 
Service  Bulletins,  Bureau  of  Animal  Industry. 
Session  Laws,  Illinois,  1911. 
Sherman  and  Eedfield — Negligence. 
Story — Bailments. 
Throop — Public  Officers. 
Van  Zile — Bailments  and  Carriers. 
Wharton — Criminal  Law. 
Wharton — Negligence. 
Wyman — Administrative  Law. 

vii 


CONTENTS 


PART  I. 

Pertaining  to  Legal  Principles. 

chaptee  i. 

General  Principles. 


1.  Importance  of  Funda- 

mental   Principles . . 

2.  Common  Law;   Consti- 

tutions ;    Statutes . . . 

3.  Nation,  State  or  City. 

4.  Division  of  Powers . .  . 


§    5.  Executive      Orders, 

Law?   9 


§    6.  Municipal  Ordinances. 

§    7.  Judicial  Legislation. . . 

§  8.  Acts  Must  Not  Be  Ar- 
bitrary     

§  St.  Duties  and  Powers  Can- 
not Be  Delegated.  . 

§  10.  Judicial   Decisions 


CHAPTEE  II. 
Police  Powek,  ' '  Due  Process,  ' '  and  Nuisances. 


§n. 

§  12. 

§13. 
§  14. 

§15. 

§16. 


Definition  of  Police 
Power   -0 

Police  Power  Besides 
in   the  States 21 

Alienum  Non  Laedat.  23 

Police  Power  Is  Above 
Private   Eights 24 

Police  Power  Cannot 
Be    Alienated 25 

No  Property  Eight  in 
Articles  Acquired  or 
Used  Contrary  to 
Law     26 

Due  Process  of  Law. .  27 


§  18.  Nuisance    28 

§  19.  Nuisance  Per  Se,  and 

In   Posse    29 

§  20.  Nuisance  a  Question  of 

Fact 30 

§  21,  Changes  in  Legal  Nui- 
sance     33 

§  22.  Treatment  of  Nui- 
sances       35 

§  23.  City  Must  Not  Commit 

Nuisance    38 

§  24.  Authority  for  Abate- 
ment, Not  for  Con- 
struction     39 


IX 


CONTENTS 


PART  II. 
Pertaining  to  Veterinaey  Practice. 

CHAPTEE  III. 

E'EGULATION    OF    THE   PRACTICE    OF    VETERINARY   SURGERY. 


§  30.  Authority  of  the  State  43 
§31.  License  to  Practice...  47 
§  32.  Standards  for  License  48 
§  33.  Appointment     of     Ex- 
aminers       53 

§  34.  Exceptions     54 

§  35.  Certificate  in  the  Place 

of  License   55 

§  36.  License  by  Keciprocity  55 

§  37.  The  License  Itself 57 


§38. 
§39. 

§40. 


§41. 
§42. 


Eevocation   of   License  59 
Attorney  for  Board  of 

Examiners    63 

"What  Constitutes  Prac- 
tice of  Veterinary 
Medicine  or  Sur- 
gery?       64 

Practice  as  a  Company  67 
Prose  cutions,    by 
Whom?    68 


CHAPTEE  IV. 

Liabilities. 

§45.  The     Contract     of     a  §53.  Survival  of  Action...   81 

Veterinarian    69  §54.  Cases  of   Malpractice.   82 

§46.  Obligation  to  Attend.  70  §55.  Liability  for  Accidents  84 

§47.  Number  of  Calls 70  §56.  Special    Liability 85 

§48.  Gratuitous  Service  ...  72  §57.  Burden  of  Proof 86 

§  49.  Ordinary   Liability 75  §  58.  Defenses     87 

§50.  Errors  of  Judgment..  76  §59.  Liability  for  Operation  89 

§  51.  Liabilities  for  the  Acts  §  60.  Liability  Under  Enaet- 

of  Others 78  ments    89 

§  52.  Liability    of    Partner- 
ship      80 


CHAPTEE  V. 

Compensation. 

!  70.  Employment    Under  §  75.  Who     Is     Liable     for 

Contract    91  Compensation    95 

71.  Competency    92  §  76.  Amount  of  Compensa- 

72.  Eight  to  Sue  for  Fees .   93  tion    102 

73.  Illegal   Practitioners.  .   94  §  77.  Use  of  Mails 103 

74.  Effect   of   Malpractice  §  78.  Liens    103 

on    Compensation...   95      §79.  Veterinarian  a  Bailee.  105 


CONTENTS 


XI 


§  80.  Contract  aud  Lien.  .  .  .107 

§81.  Nature  of  a  Lien 108 

§  82.  Voiding  a  Lien 109 

§  83,  Lien   Not  a  Right  to 

Sell    110 

§  84.  Actions    for    Recovery 

of  Compensation. .  .111 
§  85.  The  Veterinarian  as  a 

Witness    114 


§  86.  Duty  to  Prepare 115 

§  87.  Expert  Testimony. . .   116 
§  88.  Definition    and    Scope 
of    Expert    Testi- 
mony   117 

§  89.  Compensation     as     an 

Expert    120 


PART  III. 

Pertaining  to  Governmental  Control. 

chapter  vi. 

Governmental  Services. 

§    95.  The    Veterinarian    as 

an  Officer 129 

§    96.  Liability   of   Officers.  130 

§  97.  Officers  with  Discre- 
tion Cannot  Be  Co- 
erced   133 

§    98.  Arbitrary  Action  Not 

Discretion  134 

§    99.  Authority  Limited  by 

Jurisdiction   134 

§  100.  Authority  Determined 

by    Legislation ....  137 

§  101.  Invalid  Act  Is  No  De- 
fense  for   Officer..  137 

§  102.  Quarantine    138 

§  103.  Quarantine  Does  Not 
Depend  upon  Stat- 
ute    138 

§  104.  Authority  Cannot  Be 

Delegated    139 


§105. 

What  Diseases  Quar- 

antinable    140 

§106. 

Methods    in    Quaran- 

tine      141 

§107. 

Quarantine       Regula- 

tions     Should     Be 

Published 143 

§108. 

Diagnosis    144 

§109. 

Jurisdiction  in  Quar- 

antine     146 

§110. 

Quarantine        Versus 

Commerce 149 

§111. 

Destruction  of   Prop- 

erty    151 

§112. 

Personal  Liability  for 

Infectious  Disease.  151 

§113. 

Law  Versus  Policy. .  .153 

§114. 

Appraisement    157 

§115. 

State     and     National 

Officers     at     Same 

Time   159 

CHAPTER  VII. 

Governmental  Inspection. 


120.  Work     of    Veterinar- 
ians    163 


§  121.  Methods    of    Govern- 
mental Control    .  . .  163 


Xll 


CONTENTS 


DAIEY   BUSINESS 

§  122.  Quality  of  Goods 166 

§  123.  Dairy   Inspection 167 

§  124.  Confiscation    173 

§  125.  Veterinary   Authority 

in  Milk  Industry.  .174 
§126.  Dairy  Products 174 

MEAT    INDUSTRY 

§  127.  Transportation  of  Live 

Stock    175 

§  128.  Departmental    Veteri- 
narians    176 

§  129.  General       Quarantine 

Eegulations    176 

§130.  Texas  Cattle  Fever..  177 
§  131.  Protection  of  Inspec- 
tors     180 

§  132.  Liability   of   the   De- 
partment    181 

§  133.  Scabies   182 

§  134.  Hog    Cholera    and 

Swine  Plague   182 

§  135.  Dourine    182 

§  136.  Lip  and  Leg  Ulcera- 
tion (NecrobaeUlio- 

sis)    183 

§  137.  Glanders 183 

§  138.  Tuberculosis    183 

§  139.  Foot  and  Mouth  Dis- 
ease   184 


§  140.  Imported  Animals.  .  .186 
§  141.  Importations     from 

North  America  .  .  .187 
§  142.  Federal      Supervision 

at  Slaughterhouses  188 
§  143.  Antemortem   Examin- 
ation    189 

§  144.  Postmortem    Examin- 
ation  189 

§145.  Condemnations  190 

§  146.  Sterilization     195 

§147.  Disobeying    Orders... 195 

§  148.  Arbitrariness    195 

§  149,  Appeal    196 

§  150.  Prosecutions    196 

§  15L  Statutes    196 

§  152.  Meat  Inspection 197 

§  153.  Intrastate    Meat    In- 
dustries     198 

§  154.  Municipal   Control.  .  .199 

§155.  State   Eegulation 200 

§  156.  Common  Law  Regula- 
tion    200 

BIOLOGIC    SUPERVISION 

§  157.  Biologic    Products. .  .201 
§  158.  Governmental  Eespon- 

sibility    201 

§  159.  Evidence     of     Infec- 
tion    203 


CHAPTER  VIII. 

Executive  Organization. 

§  165.  American  Executive  §  170.  Veterinary  Science 
System  Unsatisfac-  and  the  Medical 
toj-y  206  Profession    212 

§  166.  Executive   Boards.  ...207       §  l^^-  ^^^^^^^    Examiners.  .214 

„      ..     ,   „     .  .  §  172.  License  Appeals 216 

§  167.  A  Trained  Executive  210       g  ^^3    ^^^^^^     preservation 

§168.  Paid  Executives 211  ^   Function  of  the 

§  169.  Permanency  of  Offiee.212  State 217 


CONTENTS 


Xlll 


§  174.  Organization  of  a 
Health  Department 
—State 219 

§  175.  Local   Organization.  .221 


§  176.  Eecords    223 

§177.  Eeports    223 

§  178.  Guidance  of  Legisla- 
tion    224 


PART  IV. 

Pertaining  to  Animals  Generally. 

CHAPTER  IX. 
Ownership  of  Animals. 


Sale  of  Brand 252 

Altering  of  Brand.  .  .253 
Wrongful  Branding.. 254 
Driving  from  Range. 254 

Breeding   255 

Service  Fees  255 

Warranty    of    Sound 

Heredity 256 

Insurance  of  Get.  . . .257 
Liens  for  Service.  . .  .258 
Liability  of  Owner  of 

Stallion    259 

Gelding  a  Stallion.  .  .259 
Liability    of    Owners 

of  Animals   260 

Obligation  to  Re- 
strain  Animals.  .  .  .262 
Barbed  Wire  Fences. 265 
Frightening  Animals.266 
Liability  for  Injuries 
on  the  Public  High- 
way    266 


§  220.  Definition    268       §  224.  Care  Required  of  Bai- 


§185. 

Wild  or  Domestic  An- 

§200. 

imals   229 

§201. 

§186. 

Animals  Ferae  Natu- 

§202. 

rae  231 

§203. 

§187. 

Dead   Animals 231 

§204. 

§188. 

Qualifications   232 

§205. 

§189. 

Dogs    232 

§206. 

§190. 

Ovrnership  of  Animals 

—How    Obtained.. 234 

§207. 

§191. 

Estrays     236 

§208. 

§192. 

Sale  of  Animals 237 

§209. 

§193. 

Warranty    of    Sound- 

ness   239 

§210. 

§194. 

Illustrative    Cases    of 
Unsoundness    242 

§211. 

§195. 

Warranty     of     Char- 
acter     244 

§212. 

§196. 

Bill  of  Sale 246 

§213. 

§197. 

Ownership  of  In- 

§214. 

crease    247 

§215. 

§198. 

Proof  of   Ownership .  249 

§199. 

Marks  and  Brands.  .250 

CHAPTER  X. 

Bailment. 

§221.  Bailment  a  Contract. 269 
§  222.  Bailer    May    Not    Be 

Owner 269 

§223.  Bailment  Implies 
Knowledge  of  t  h  e 
Bailee   270 


lee   270 

§  225.  Ordinary  Care 272 

§  226.  Duty  of  BaUor 272 

§  227.  LiabUity  of  BaUee. .  .273 
§  228.  Warranty  of  Bailor..  275 


XIV 


CONTENTS 


§  229.  BaUment,    Sale,    or 

Gift 276 

§  230.  Bailee 's  Eight  to  Use 

Property  Bailed. .  .277 
§  231.  Actions  for  Liability 

of  Bailee   278 

§  232.  Conversion    279 

§233.  Liens    280 

§  234.  General  Liens 281 

§  235.  Agister's  Lien 283 

Index  of  Cases  Cited  .... 
Index 


236.  Trainer's  Lien 285 

237.  Priority  of  Right 285 

238.  Right  of  Sale 286 

239.  Estrays  and  Trespas- 

sing Animals 287 

240.  Waiver  of  Lien 289 

241.  Illegal  Sale  by  Bailee.289 

242.  Lien   Once  Lost   Can 

Not  Be  Revived ...  290 


.291 
.309 


PART  I 

PERTAINING  TO  LEGAL  PRINCIPLES 


ESSENTIALS  OF 

VETERINARY    LAW 


CHAPTER  I. 

GENERAL  PRINCIPLES. 

§    1.  Importance      of      Funda-  §  6.  Municipal  Ordinanees. 

mental  Principles.  §  7.  Judicial  Legislation. 

§    2.  Common    Law;     Constitu-  §  8.  Acts  Must   Not  Be   Arbi- 

tions;  Statutes.  trary. 

§    3.  Nation,  State,  or  City.  §  9.  Duties    and    Powers    Can- 

§    4.  Division  of  Powers.  not  Be  Delegated. 

§    5.  Executive  Orders,  Law?  §  10.  Judicial  Decisions. 

1.  Importance  of  Fundamental  Principles.  Be- 
fore a  man  would  buy  an  apartment  building  in 
Chicago,  for  example,  he  would  enquire  what  kind 
of  a  title  the  seller  held,  and  from  what  source, 
what  claims  there  were  against  the  property,  and 
what  special  obligations  he  would  assume  in  pur- 
chasing it.  In  a  similar  way,  in  order  to  fully  ap- 
preciate legal  points  it  is  needful  to  consider  the 
source  of  the  law  indicated,  and  the  nature  of  the 
authority  involved.  The  provisions  of  a  city  or- 
dinance may  be  set  aside  at  any  time,  or  even  re- 
versed, by  the  action  of  the  state  legislative  body, 
or  by  that  of  the  nation.  Authorities  of  the  state 
may  take  adjoining  buildings  for  the  benefit  of  the 
public.  The  one  taken  under  the  power  called  emi- 
nent domain  must  be  paid  for  at  a  fair  price ;  the 

3 


4  ESSENTIALS  OF  VETERINARY  LAW 

one  taken  under  police  power  may  be  destroyed, 
without  any  obligation  on  the  part  of  any  one 
to  pay  for  it.  Two  veterinarians  treating  the  ani- 
mals on  adjoining  farms  in  the  same  way  may  both 
lose  their  patients.  One  might  be  held  legally 
liable  for  the  value  of  the  animal  lost,  and  the 
other  not  liable,  depending  upon  the  underlying 
principle  of  his  legal  obligation. 

2.  Common  Law;  Constitutions;  Statutes.  Many 
people  imagine  that  if  they  know  the  statutes 
which  have  been  enacted  upon  a  certain  point,  they 
know  all  of  the  law  necessary  relative  thereto. 
The  fact  is  that  there  is  a  great  body  of  the  law 
which  is  not  written  in  any  statute,  and  it  is  this 
''Common  law"  which  gives  to  English  speaking 
nations  a  peculiar  system.  It  is  evident  that  it 
would  be  a  practical  impossibility  to  cover  all  pos- 
sible points  with  enactments,  and  in  fact  it  would 
frequently  be  undesirable  so  to  do.  Through  the 
decisions  of  the  English  and  American  courts 
there  have  gradually  been  evolved  certain  princi- 
ples of  law  which  find  their  use  to  a  greater  or  less 
degree  in  almost  all  legal  decisions.  This  body  of 
principles  is  known  as  the  common  law. 

There  are  certain  principles  which  have  been 
adopted  by  the  nation,  and  others  by  the  separate 
states,  and  which  have  been  put  in  definite  form 
in  words,  and  these  documents  are  known  as  con- 
stitutions. They  are  so  arranged  that  they  are  not 
easily  changed.  They  are  the  charters  under 
which  the  national  and  state  governments  work. 
No  city  ordinance,  no  executive  order,  no  state 
statute  is  really  law  and  binding,  if  it  violate  the 
principles  of  the  constitution  of  its  state,  or  of  the 


GENERAL  PRINCIPLES  5 

nation.  For  example:  There  is  in  the  Revised 
Statutes  of  Illinois  an  act  prohibiting  the  importa- 
tion of  Texas  cattle  into  the  state  from  the  first 
day  of  March  to  the  first  day  of  October.  This 
law,  originally  passed  in  1867,  was  intended  to 
prevent  the  spread  of  the  Texas  cattle  fever.  A 
similar  law  in  Missouri  was  pronounced  unconsti- 
tutional by  the  Supreme  Court  of  the  United  States 
because  it  violated  the  right  of  Congress  over 
interstate  commerce.^  Since  then  the  Illinois 
court  has  similarly  decided  that  the  Illinois  stat- 
iite  is  unconstitutional  also.-  This  act  should  have 
been  repealed  by  the  legislature.  It  remains  as 
one  of  the  old  curiosities.  It  is  not  law,  though 
it  has  the  appearance  of  being  such. 

Statutes  are  enactments  m^ade  by  the  legislative 
body  having  jurisdiction.  The  field  for  statutes 
is  such  subjects  as  need  a  definite  settlement, 
but  the  decision  relative  to  which  may  need  to 
be  revised.  The  statute  must  not  violate  consti- 
tutional provisions.  Otherwise,  so  long  as  the 
law  stands,  whatever  it  commands  must  be  done, 
and  it  must  be  done  in  the  way  it  is  thus  ordered. 
The  Texas  law  ordered  that  a  butcher  must 
report  to  the  County  Commissioner's  Court  at 
each  term  the  number  and  description  of  all 
cattle  slaughtered  by  him  since  the  last  report. 
The  fact  that  a  butcher  presented  such  a  report, 
duly  made  out  and  sworn  to,  at  a  subsequent  term 
did  not  excuse  his  failure  to  comply  with  the  law.^ 

iH.   &   St.  J.   R.   E.  Co.   V.  Erickson,  91  111.  613;  Jarvis  v. 

Husen,  5  Otto,  465.  Riggin,  94  111.  164. 

2  Salzenstein     v.     Mavis,     91  3  Bruns  v.  State,  33  Tex.  Cr. 

111.  391:   C.  &  A.  R.  R.  Co.  v.  41.5,  26  S.  W.  722. 


6  ESSENTIALS  OF  YETEEINARY  LAW 

What  a  statute  expressly  provides  is  legal,  but 
the  permissions  of  the  statute  must  not  be  pre- 
sumed to  extend  beyond  the  plain  meaning  of  the 
words.  In  Massachusetts  there  was  a  statute 
which  gave  permission  for  any  person  to  kill  a 
dog  wandering  around  without  a  collar.  That  law 
did  not  make  such  lack  of  collar  sufficient  evidence 
of  lack  of  ownershii3  to  justify  one  in  taking  the 
dog  for  his  own  use.^  The  permission  to  kill  was 
based  upon  the  idea  that  the  dog  would  not  be 
killed  unless  he  were  a  nuisance.  If  he  had  value, 
the  person  taking  him  would  be  depriving  another 
of  his  property  for  his  own  use;  that  is  stealing.^ 
3.  Nation,  State,  or  City.  In  the  United  States 
we  find  different  governmental  entities,  with  their 
appropriate  organizations,  and  with  sometimes 
conflicting  authority.  The  Constitution  of  the 
United  States  gives  to  Congress  exclusive  legis- 
lative power  over  certain  subjects,  and  concur- 
rent jurisdiction  over  certain  others.  Where 
Congress  has  exclusive  authority  the  states  must 
not  intrude.  Where  the  jurisdiction  is  concurrent, 
the  enactments  of  the  state  will  be  respected,  only 
in  so  far  as  they  do  not  conflict  with  Congressional 
action.  By  the  express  provision  of  the  Constitu- 
tion of  the  nation,  all  power  not  expressly  given 
to  the  Congress,  or  prohibited  to  the  states,  is 
resented  to  the  individual  states.  The  nation  was 
made  up  from  a  union  of  states.  This  is  not  at 
all  the  relationship  of  the  state  and  the  towns  or 
cities.  The  state  is  not  composed  of  towns  and 
cities,  nor  of  counties.    The  counties,  towns  and 

4  Cnmmings    v.    Perham,     li!  "■  Public  Health,  Chap.  II. 

Mass.  .")."."). 


GENERAL  PRINCIPLES  7 

cities  are  parts  of  the  state,  and  they  have  only 
such  power  and  authority  as  the  state  may  give  to 
them;  or  as  may  be  reasonably  implied  in  the  pow- 
ers expressly  given.  There  are  many  things  which 
it  might  be  desirable  for  a  city  to  do,  but  which 
it  cannot  do  until  it  shall  be  given  such  power  by 
the  state."  A  poAver  or  authority  given  to  the 
cities  may  at  any  time  be  taken  back  by  the  state 
legislature,  and  ordinances  previously  passed  and 
in  force  under  such  authority  will  thus  be  re- 
pealed." 

4.  Division  of  Powers.  According  to  the  Amer- 
ican governmental  system,  and  more  or  less  defi- 
nitely and  expressly  provided  in  the  several  con- 
stitutions, the  powers  of  government  are  divided 
between  three  branches.  The  legislature  has  au- 
thority to  make  laws,  but  not  to  interpret  nor  to 
apply  them.  The  business  of  the  executive  branch 
is  solely  to  administer  the  laws  impartially.  It 
is  necessary  for  the  executive  often  to  interpret 
the  laws  for  his  own  guidance,  but  his  interpreta- 
tion has  no  weight  of  '  *  authority. "  It  is  true  that 
being  in  a  position  to  know  the  facts,  the  opinion 
of  the  executive  may  be  given  respect,  but  his 
interpretation  is  frequently  set  aside.  Neither  is 
it  the  province  of  the  executive  to  say  what  shall, 
or  shall  not,  be  the  law,  further  than  that  under 
the  veto  power  he  may  impede  the  passage  of  cer- 
tain acts  which  he  thinks  prejudicial;  but  even 
then  the  acts  may  be  made  law  over  his  veto.® 

6  Jenkins  v.  Board  of  Eduoa-  »  Public    Health,    Chapters 
tion,  234  111.  422.                                 Ill,  IV,  V. 

7  Public  Health,  Chap.  IX. 


8         ESSENTIALS  OF  VETERINARY  LAW 

The  courts  only  may  give  an  authoritative  inter- 
pretation of  the  laws  in  their  application. 

This  division  of  powers  is  far  more  important 
than  is  generally  recognized.  It  is  the  chief  de- 
fense against  oppression  and  tyranny.  If  the 
legislature  were  permitted  to  interpret  their  own 
laws  they  might  easily  make  that  a  crime  which 
when  committed  was  really  no  crime.  If  the  ex- 
ecutive were  permitted  with  impunity  to  make 
laws  as  he  pleased,  and  to  interpret  laws  enacted 
according  to  his  own  will,  he  could  easily  prove 
himself  a  dangerous  tyrant.  If  the  majority  of 
the  voters  be  permitted  to  do  as  they  please  in  the 
making  and  enforcing  of  the  laws,  we  should  find 
the  worst  form  of  tyranny — that  of  the  mob,  such 
as  brought  horror,  death,  and  ruin  upon  so  many 
innocent  victims  under  the  old  Paris  Commune. 
Every  attempt  at  such  unconstitutional  union  of 
powers  in  one  person,  or  in  one  governmental 
body,  is  a  move  towards  the  state  of  affairs  most 
perfectly  represented  by  the  Paris  Commune.  It 
may  do  no  harm  for  a  governor  to  attempt  to  force 
through  certain  legislation,  further  than  it  is  a 
usurpation  of  authority,  and  it  tends  to  break 
down  the  barrier.  Congress,  or  a  state  legislature 
may  attempt  to  force  the  President,  or  the  gov- 
ernor, to  certain  executive  action  against  his 
judgment,  by  withholding  appropriations  until  he 
does  as  the  legislative  body  demands,  but  such 
action  is  a  violation  of  constitutional  provisions 
which  should  be  observed.  It  is  the  duty  of  the 
executive  to  enforce  the  laws  as  enacted.  That  is 
a  different  matter.  What  the  law  directs  he  should 
do.    If  he  be  given  discretion,  he  must  use  his 


GENERAL  PRINCIPLES  9 

own  judgment,  and  should  not  be  forced  by  the 
wish  of  those  who  are  not  responsible  for  his  du- 
ties. If  he  fails  to  enforce  the  laws  as  enacted,  he 
may  be  impeached  and  removed  from  office. 

5.  Executive  Orders,  Law?  It  very  frequently 
happens  that  a  statute  needs  to  be  supplemented 
by  definite  regulations  in  application.  When 
these  regulations  are  within  the  provisions  of  the 
statute,  they  have  the  full  force  of  the  original 
statute,  and  are  equally  binding.  This  has  given 
rise  to  the  statement  often  made  that  executive 
orders  have  the  force  of  law;  but  this  statement 
is  not  always  true.  The  executive  orders  must 
simply  provide  for  the  working  of  the  statute  as 
enacted,  and  must  not  attempt  to  enlarge  the  scope 
or  meaning  of  the  act.  For  example :  Some  years 
ago  Congress  passed  an  act  providing  for  the  ad- 
mission of  animals  intended  for  breeding  pur- 
poses, free  of  duty.  The  Secretary  of  the  Treas- 
ury, whose  duty  it  is  to  supervise  the  collection  of 
import  duties,  made  a  ruling  that  animals  so  ad- 
mitted free  must  show  evidence  of  superior  breed- 
ing. This  was  probably  the  intention  of  the 
Congress  in  making  this  exception,  as  without 
such  a  reservation  it  would  be  an  easy  matter  for 
one  to  bring  over  any  animal  free  if  it  had  the 
power  of  reproduction.  However,  Congress  failed 
to  make  this  statement  in  the  act,  and  the  court 
very  properly  said  that  the  Secretary's  regulation 
appended  to  the  provisions  of  the  statute  another 
restriction.  It  was  therefore  not  a  regulation,  but 
new  legislation,  and  was  therefore  a  violation  of 
the  principle  of  division  of  powers  ( §  4)  and  so 


10        ESSENTIALS  OF  VETERINARY  LAW 

unconstitutional.^  Similarly,  regulations  as  to 
manufacture  were  considered  to  be  legislation,  and 
so  not  law.^"  But  regulations  relative  to  marking 
of  goods  were  considered  true  regulations,  and  not 
additional  legislation.^^  "As  regulations  depend 
upon  a  statute,  they  can  never  go  to  the  extent 
of  being  independent  of  the  statute.  A  regula- 
tion which  is  in  effect  legislation  is  in  a  just  sense 
a  regnilation  no  longer.  That  is,  as  a  regulation  is 
derivative,  it  must  keep  within  the  scope  of  the 
statute  under  which  it  is  formed. ' '  ^- 

This  point  is  very  important  for  veterinarians 
for  two  reasons.  First,  many  members  of  the  pro- 
fession hold  administrative  positions,  and  as  such 
it  is  their  duty  to  apply  the  laws  enacted.  Through 
mistaken  ideas  of  their  authority  they  often  at- 
temjDt  this  excess  of  power,  and  if  they  do  so  to 
tlie  injury  of  any  one,  they  may  be  held  liable  for 
such  damages  as  may  appear.  Secondly,  veterina- 
rians are  working  under  the  law,  and  they  may  be 
met  with  attempts  at  illegal  use  of  official  posi- 
tions in  a  way  that  may  work  injuiy  to  themselves 
or  to  their  clients.  If,  in  such  cases  they  know  the 
general  principles  of  the  legal  situation,  they  may 
save  themselves  and  their  clients  trouble  and 
money.  ^^ 

6.  Municipal  Ordinances.  Although  municipal 
ordinances,  and  sometimes  the  regulations  of 
boards  of  health,  may  have  the  form  of  enact- 

9  Morrill  v.  Jones,  106  IT.  S.  i2Wyman.     Administrative 
466.                                                          Law,  133. 

10  United  States  V.  Eaton,  144  is  Public  Health,  100. 
U.  S.  677. 

n  In   re  KoUoek,    165   U.   S. 
526. 


GENERAL  PRINCIPLES  11 

ments,  they  are  really  essentially  executive  orders 
and  regulations.  The  city  has  no  authority  to 
make  ordinances  outside  of  the  limits  of  the  pro- 
visions expressly  given  in  the  charter  and  state 
statutes.  Neither  may  the  city  pass  an  ordinance 
which  has  a  legal  authority  outside  of  the  limits 
of  the  city,  except  in  a  few  special  cases  where 
such  additional  authority  is  given,  such  as  to  pro- 
tect the  purity  of  the  public  water  supply.  A  city 
may  pass  an  ordinance  prohibiting  the  importa- 
tion of  milk  which  comes  from  cows  which  have 
not  passed  the  tuberculin  test.  This  ordinance 
has  no  legal  authority  over  the  dairy  situated  out- 
side of  the  city,  though  it  may  have  a  commercial 
force  over  a  dairy  situated  even  in  another  state. 
The  farmer  is  not  compelled  to  use  the  tuberculin 
test ;  but  if  he  wishes  to  sell  his  product  he  must 
furnish  such  a  product  as  his  customers  want,  and 
unless  there  be  some  special  restriction  in  the  mat- 
ter, such  as  was  enacted  by  the  state  of  Illinois  a 
few  years  ago  at  the  demand  of  the  dairymen,  a 
city  may  make  such  a  regulation  by  ordinance,  and 
the  ordinance  will  be  supported  by  the  courts.^* 
The  city  may  not  go  beyond  the  provisions  of  its 
charter  and  the  statutes,  but  whatever  the  state 
expressly  provides  it  may  do  legally.^^ 

Those  who  are  familiar  with  European  methods 
sometimes  fail  to  realize  the  fundamental  differ- 
ences in  the  systems  of  government.  There  the 
separation  of  powers  is  not  distinct,  and  we  find 

14  Adams  v.    Milwaukee,   228  Montclair,  81  N.  J.  L.  218,  80 

IT.  S.   572;    Adams  v.    Milwau-  Atl.     30;     Hawkins     v.     Hoye 

kee,   144   Wis.    371;    Nelson   v.  (Miss.),  66  So.  741. 

Minneapolis,     112     Minn.     16;  is  Public  Health,  254-262. 
Borden    v.    Board    of    Health, 


12        ESSENTIALS  OF  VETERINARY  LAW 

the  executives  performing  much  of  the  duty  which 
here  must  be  performed  by  the  legislative  body  or 
the  court. 

7.  Judicial  Legislation.  We  sometimes  hear  of 
laws  made  by  the  courts.  It  is  true  that  some- 
times the  interpretation  of  a  law  made  by  the 
legislature  either  adds  to,  or  takes  from,  the  pur- 
pose of  the  framers;  but  the  court  does  not  make 
the  law.  It  is  the  business  of  the  courts  to  inter- 
pret the  laws  made.  The  court  may  doubt  the 
advisability  of  the  law,  or  the  necessity  for  its 
passage;  it  may  think  that  some  other  provision 
would  be  better;  and  the  judge  may  be  personally 
opposed  to  the  enactment;  but  if  the  letter  of  the 
law  seems  reasonable,  and  in  harmony  with  the 
constitution,  and  if  the  legislative  body  has  not 
exceeded  its  authority,  it  is  the  business  of  the 
court  to  uphold  the  statute,  and  to  put  upon  it 
the  simplest  possible  construction,  according  to  the 
form  of  words  used.^^  "A  statute  will  not  be  de- 
clared unconstitutional  unless  its  invalidity  ap- 
pears beyond  a  reasonable  doubt."  ^^  In  a  recent 
case  in  New  York,  where  a  muzzling  ordinance 
was  being  attacked,  the  argument  was  made  that 
''The  court  will  probably  have  little  difficulty  in 
conceiving  of  situations  where  the  proper  use  of  a 
leash,  or  of  some  form  of  closed  conveyance  could 
secure  perfect  protection  to  the  public. ' '  The  court 
answered:  "This  argument,  however,  entirely 
begs  the  real  question.  The  court  has  nothing  to 
do  with  the  wisdom  of  the  ordinance;  perhaps  a 
less  sweeping  ordinance  would  effect  the  same 

16  state  V.  K.  C.  M.  &  B.  Co.  it  State  ex  rel.  Christian  Co. 

(Ark.),  174  S.  W.  248.  v.  Gordon  (Mo.),  176  S.  W.  1. 


GENERAL  PRINCIPLES  13 

result;  perhaps  there  are  conditions  where  a 
proper  use  of  a  leash  would  secure  perfect  protec- 
tion to  the  public.  *  *  *  Under  the  circum- 
stances it  seems  to  me  quite  illogical  to  urge  that 
the  ordinance  bears  no  reasonable  and  direct  rela- 
tion to  its  purpose.  Consequently  the  court  must 
hold  that  it  comes  fairly  within  the  power  of  the 
board  of  health,  even  though  the  court  might  feel, 
which  it  by  no  means  desires  to  intimate,  that  it 
might  have  found  other  means  less  annoying  to 
dog  owners  which  might  prove  equally  effective. 
*  *  *  It  is  the  duty  of  the  court  to  give  an 
ordinance,  where  possible,  such  construction  as 
would  not  render  it  unconstitutional."^^ 

It  is  also  the  duty  of  the  courts  to  prevent  ex- 
cess of  other  officers,  to  see  that  they  do  what  is 
required  of  them  by  law,  and  that  they  do  their 
work  in  proper  form.  It  is  their  duty  also  to  judge 
between  man  and  man,  and  to  punish  evildoers.^^ 

8.  Acts  Must  Not  Be  Arbitrary.  Arbitrary 
action  is  the  result  of  will,  rather  than  of  reason. 
It  is  the  method  used  by  tyrants  in  government, 
whether  the  tyranny  may  be  shown  by  a  single 
king,  or  by  a  temporary  majority  of  the  people. 
For  this  reason  even  the  semblance  of  arbitrari- 
ness is  shunned  in  American  governments.  The 
executive  officer  must  show  reason  in  the  applica- 
tion of  the  law,  and  he  must  not  use  his  position 
for  the  purpose  of  gaining  some  personal  advan- 
tage over  another.  So  the  wording  of  a  statute 
or  ordinance  must  show  that  it  is  based  upon  a 

18  People  ex  rel.  Knoblauch  v.  is  Public  Health,  Chap.  V. 

Warden  of  City  Prison,  153  N. 
Y.  Sup.  463. 


14        ESSENTIALS  OP  VETERINARY  LAW 

reasonable  interpretation  of  facts.  Long  ago  the 
Supreme  Court  of  the  United  States  showed  that 
a  statute  prohibiting  the  sale  of  meat  unless 
it  shall  have  been  inspected  on  the  hoof  within  the 
state,  though  on  its  face  it  may  appear  to  be  a 
sanitaiy  measure,  is  really  an  unnecessary  re- 
straint upon  interstate  trade.^^^  In  other  words, 
the  measures  adopted  for  safeguarding  the  health 
were  unnecessarily  strict,  and  therefore  they  were 
unreasonable.  At  about  the  same  time  the  states 
of  Missouri  and  Texas  passed  acts  which  were 
intended  to  aid  in  the  control  of  the  Texas  cattle 
fever.  The  Texas  act  prohibited  importation  of 
cattle  from  infected  territory,  and  the  U.  S.  Su- 
preme Court  upheld  this  as  reasonable,^  ^  The 
Missouri  statute,  as  does  also  that  in  Illinois, 
absolutely  prohibited  the  importation  of  cattle 
from  a  certain  section  during  certain  months  of 
the  year.  There  was  nothing  in  the  law  which 
prevented  the  importation  of  cattle  from  other 
sections  which  might  be  infected,  nor  was  there 
any  exception  made  as  to  a  section  in  the  pre- 
scribed territory  where  there  might  be  none  of 
the  fever  found.  It  was  an  arbitrary  prohibition 
of  the  importation  of  cattle  from  a  certain  dis- 
trict. It  was  an  interference  with  interstate  traf- 
fic, and  not  really  a  health  measure.  The  Su- 
preme Court  therefore  held  it  unconstitutional.^^ 
Cities,  in  their  passage  of  ordinances,  are  very 
prone  to  attempt  this  violation  of  rights.  In  the 
granting  of  exclusive  rights  and  franchises  the 

20  Minnesota   v.   Barber,   136  22  H.  &  St.  J.  E.  E.  Co.  v. 
U.  S.  313.                                             Husen,  5  Otto.  465. 

21  Smith  V.  St.  Louis  &  S.  W. 
E.  Co.,  181  TT.  S.  248. 


GENERAL  PRINCIPLES  15 

city  is  very  likely  to  be  arbitrary  rather  than  rea- 
sonable. Unfortunately,  health  executives  are  fre- 
quent violators  of  this  safeguard,  and  they  are 
impatient  of  any  opposition.  To  order  that  all 
the  garbage  for  collection  be  placed  in  tightly 
covered  cans  of  a  certain  general  size  and  char- 
acter may  be  reasonable,  but  to  specify  a  particu- 
lar make  of  can,  thus  giving  to  that  manufacturer 
a  monopoly,  would  be  considered  unreasonable. 
In  a  populous  city  where  the  manure  is  carted 
away  for  miles,  and  has  practically  no  commercial 
value,  under  certain  circumstances  the  courts 
would  uphold  a  contract  made  with  some  man  or 
corporation  by  which  the  said  man  or  corpora- 
tion agrees  to  haul  away  all  garbage,  manure  and 
dead  animals,  and  by  which  the  city  gives  these 
substances  to  the  contractor.  On  the  other  hand, 
in  a  small  place  where  the  garbage  and  manure 
question  is  not  important,  and  where  the  owners 
make  use  of  the  materials  upon  their  own  places, 
such  a  contract  would  be  considered  arbitrary,  un- 
reasonable and  illegal.  Cities  in  the  borderland 
between  these  two  are  the  ones  where  the  ques- 
tion is  most  likely  to  arise,  and  it  is  here  that  those 
working  honestly  for  the  common  good  are  most 
likely  to  misintei^pret  the  meaning  of  the  court.- ^ 
9.  Duties  and  Powers  Cannot  Be  Delegated. 
The  law  makes  a  difference  between  what  it  calls 
ministerial  and  discretionary  duties  and  powers. 
This  distinction  nins  through  private  and  public 
life.  A  ministerial  office  or  employment  is  one  in 
which  the  work  is  essentially  largely  mechanical. 
A  discretionaiy  position  is  one  which  demands 

23  Public  Health,  195,  259. 


16        ESSENTIALS  OF  VETERINARY  LAW 

judgment.  In  official  life,  ministerial  duties  are 
exactly  prescribed  by  law;  and  the  officer  or  em- 
ployee must  do  all  that  the  law  says,  in  the  way 
that  it  demands,  and  no  more.  In  discretionary 
positions  the  officer  must  decide  his  own  course  of 
action  to  no  small  degree.  When  a  veterinary  sur- 
geon is  engaged  to  look  after  the  condition  of 
stock  which  a  man  is  about  to  buy,  it  is  to  be 
presumed  that  it  is  because  the  employer  desires 
the  professional  judgment  of  the  veterinarian. 
Having  employed  this  veterinarian  it  would  not 
be  a  fair  deal  for  the  surgeon  to  send  someone 
else  in  his  place  (unless  the  substitution  were 
previously  agreed  upon  with  the  employer),  and  if 
such  a  substitute  be  sent  the  employer  would  not 
be  liable  for  the  payment  of  the  substitute.  He 
would  not  be  liable  for  the  fee  of  the  man  em- 
ployed, for  the  man  employed  did  not,  in  the  case 
supposed,  perform  the  duty  imposed  in  the  con- 
tract. He  would  not  be  obligated  to  the  substi- 
tute for  he  had  no  contract,  either  expressed  or 
implied,  with  him.  So  where  a  physician  was 
employed  to  treat  the  sick  of  the  community,  he 
could  not  collect  for  the  services  of  a  substitute, 
nor  could  the  substitute  collect  directly.^*  It  fol- 
lows also  that  an  officer  whose  duties  require  the 
use  of  judgment  cannot  leave  the  performance  of 
them  to  a  substituted^  Where  the  duties  are  pure- 
ly ministerial,  like  the  writing  of  a  license,  the 
duties  may  be  performed  by  another. 

24  Chapman  v.  Muskegon  Co..         25  Public  Health,  328,  272. 
169  Mich.  10,  134  N.  W.  1025 ; 
Hickman  v.  McMorris,  149  Ky. 
1,  147  S.  W.  768. 


GENERAL  PRINCIPLES  17 

10.  Judicial  Decisions.  Inasmuch  as  legal  dis- 
cussions and  text-books  deal  chiefly  with  the  re- 
ports of  judicial  decisions,  it  is  necessary  to  clear- 
ly understand  what  is  meant.  Discussions  of 
statutes,  irrespective  of  decisions,  are  of  veiy  lit- 
tle practical  value,  for  statutes  are  often  changed 
as  fast  as  they  are  made;  and  one  illegal  statute 
frequently  begets  several  others  equally  vicious 
before  its  harmful  course  is  checked  by  a  judicial 
condemnation.  On  the  other  hand,  the  same  court 
may  give  seemingly  conflicting  decisions  relative 
to  the  same  general  point,  because  the  statute  has 
been  changed  in  the  meantime  by  the  legislature; 
yet  the  decisions  are  really  harmonious,  because 
the  outcome  of  the  same  principle.  Though  in 
some  states  there  are  provisions  for  getting  an 
opinion  from  the  court  without  having  a  case 
before  it,  such  conditions  are  uncommon,  and  the 
opinion  thus  rendered  may  be  inconclusive.  To 
get  a  valuable  decision  there  should  be  a  full  con- 
sideration of  all  sides,  and  this  is  practically  im- 
possible unless  the  various  positions  shall  be  ar- 
gued. This  happens  when  a  * '  case ' '  is  before  the 
court.  But  the  case  is  generally  heard  originally 
before  a  judge  in  one  of  the  lower  courts.  His 
duty  is  more  particularly  to  apply  the  law  to  the 
individual  matter  before  him.  Plis  attention  is 
directed  especially  to  the  facts,  rather  than  to 
legal  interpretation,  and  when  he  renders  his 
decision  he  is  very  likely  to  be  unconsciously 
biased  by  personal  feelings,  or  by  the  surround- 
ings. The  decisions  in  these  lower  courts  are  sel- 
dom published,  and  they  are  of  relatively  little 
value. 


18        ESSENTIALS  OF  VETERINARY  LAW 

When  there  is  a  question  as  to  the  interpreta- 
tion of  the  law,  or  to  use  a  legal  phrase,  when  there 
is  a  question  as  to  points  of  law,  the  case  may  be 
appealed.  The  matter  is  then  presented  to  an 
appellate,  or  to  a  supreme  court.  Here  the  mat- 
ter is  heard  before  from  three  to  twelve  judges 
who  give  their  attention  to  the  questions  of  law, 
rather  than  questions  of  fact.  If  the  decision  in 
the  appellate  court  is  still  unsatisfactory  to  one 
of  the  parties,  the  case  goes  to  the  supreme  court. 
The  decision  of  a  state  supreme  court  is  conclusive 
as  to  the  law  of  that  state,  except  in  so  far  as  a 
question  of  national  law  may  be  involved.  These 
appellate  and  supreme  court  decisions  are  gen- 
erally published,  and  it  is  to  these  that  ''cita- 
tions" are  made.  Where  the  members  of  the 
higher  court  do  not  agree,  this  fact  is  stated,  with 
the  opinion  of  the  dissenting  judges,  in  many 
cases.  The  decisions  or  opinions  are  discussions 
of  the  points  of  law  involved,  and  depend  largely 
upon  previous  decisions  on  similar  points,  and 
they  serve  as  precedents  for  future  decisions. 

There  are  three  factors  which  tend  to  prevent 
appeal.  The  points  or  value  involved  may  be  of 
insufficient  consequence ;  or,  the  person  dissatisfied 
may  be  financially  unable;  or,  the  parties  may  be 
satisfied  that  the  case  has  really  been  decided  by 
some  previous  decision. 

The  veterinaiy  profession  is  a  part  of  the  gen- 
eral medical  profession.  As  a  profession  it  is  as 
yet  "in  short  dresses."  The  number  of  real  vet- 
erinarians is  small,  relatively,  and  there  are  as 
yet  few  states  in  which  there  has  been  an  attempt 
to  regulate  the  practice.     In  contrast,  the  gen- 


GENERAL  PRINCIPLES  19 

eral  medical  profession  is  old,  it  is  crowded,  it  lias 
been  generally  regulated,  and  in  addition  it  lends 
itself  to  certain  kinds  of  question  "which  would 
hardly  be  applied  in  veterinary  practice  (such  as. 
Is  faith  cure  ''the  practice  of  medicine?").  The 
consequence  is  that  almost  all  the  legal  points 
have  been  considered  with  reference  to  the  gen- 
eral profession,  and  there  are  relatively  very  few 
"reported"  cases  relative  to  veterinary  practice. 
The  cases  reported  in  the  papers,  as  a  rule,  are 
not  legally  ''reported  cases,"  and  they  have  of 
themselves  practically  no  value  as  precedents. 
They  are  simply  verdicts  in  lower  courts,  and  if 
appealed  they  might  be  reversed  by  the  higher 
court.  They  are  therefore  very  unsafe  to  depend 
upon.  They  are  not  properly  judicial  decisions, 
but  so  far  as  the  law  is  concerned  they  are  simply 
the  opinions  of  one  man  in  each  case ;  and  that  one 
man  may  be  thoroughly  incompetent,  in  spite  of 
the  fact  that  he  may  have  been  elected  to  his  posi- 
tion by  a  majority  of  his  neighbors  for  friendly 
reasons. 

It  therefore  follows,  that  in  seeking  for  the  legal 
principles  applicable  in  the  practice  of  the  veteri- 
nary profession  we  may  display  few  cases  in  which 
a  veterinarian  was  involved,  but  we  must  depend 
upon  similar  cases  in  other  lines. 


CHAPTEE  II. 

POLICE  POWER,  "DUE  PROCESS,"  AND  NUISANCES. 

§  11.  Definition      of      Police  §  IS.  Nuisance. 

Power.  §  19,  Nuisance  Per  Sc,  and  In 
§  12.  Police    Power    Resides    in  Posse. 

the  States.  §  20.  Nuisance    a    Question    of 
§  13.  Alienum  Non  Laedat.  Fact. 

§  14.  Police    Power    Is    Above  §  21.  Changes     in    Legal     Nui- 

Private  Rights.  sance. 

§  15.  Police   Power   Cannot   Be  §  22.  Treatment  of  Nuisances. 

Alienated.  §  23.  City    Must    Not    Commit 
§  16.  No  Property  Right  in  Ar-  Nuisance. 

tides  Acquired  or  Used  §  24.  Authority  for  Abatement, 

Contrary  to  Law.  Not  for  Construction. 

§  17.  Due  Process  of  Law. 

11.  Definition  of  Police  Power.  Governments 
nse  various  powers,  such  as  that  of  taxation, 
treaty  making,  control  of  commerce,  etc.,  but  the 
one  which  most  concerns  members  of  the  medical 
and  surgical  professions  is  embraced  under  the 
somewhat  indefinite  term  of  * '  police  power. ' '  ^ 
This  power  is  by  no  means  confined  to  the  use  of 
the  officers  whom  we  call ' '  police. ' '  Much  of  their 
duty  pertains  to  the  enforcement  of  the  criminal 
law,  from  which  police  power  is  quite  distinct. 
Police  power  is  that  inherent  power  in  govern- 
ments which  is  used  for  self  protection.  It  tends 
to  prevent  misfortunes  and  calamities,  and  it 
works  largely  by  placing  restrictions  upon  undue 
liberty  of  action  on  the  part  of  citizens.  An  exact 
definition  of  the  limits  of  the  power  has  never 

1  Public  Health,  Chap.  VI. 

20 


POLICE  POWER  21 

been  given,  and  the  general  lorinciples  under  which 
it  operates  may  cause  expansion  or  contraction  of 
its  application  upon  the  same  general  subject  un- 
der different  circumstances.  To  prevent  harm 
being  done  by  unqualified  or  unprincipled  practi- 
tioners of  medicine  or  surgery,  under  police  power 
the  doctor  may  be  compelled  to  present  evidence 
of  his  fitness  for  the  trust,  and  in  order  to  cany 
out  this  provision  the  state  may  prohibit  any  per- 
son from  attempting  to  treat  the  sick  or  injured 
animals  of  any  species  until  he  shall  first  have 
obtained  a  license.  Under  police  power  quaran- 
tines are  established,  the  production  and  sale  of 
foods  are  regulated,  industrial  enterprises  are 
supei'vised,  the  construction  of  buildings  is  con- 
trolled, the  breeding  of  flies,  mosquitoes,  rats  and 
other  pests  is  restricted,  and  trade  operations  are 
watched  to  prevent  fraud.  Under  this  power  stat- 
utes are  enacted  by  the  state,  and  ordinances  by 
the  city.  Sometimes  it  is  exerted  by  an  executive 
officer  unsupported  by  any  previous  legislation, 
and  it  is  recognized  by  the  courts.  It  is  a  tre- 
mendous power,  which  may  easily  be  abused,  but 
its  existence  and  recognition  is  of  the  utmost  im- 
portance for  the  general  good. 

12.  Police  Power  Resides  in  the  States.  The 
Ninth  and  Tenth  Amendments  to  the  Federal  Con- 
stitution have  generally  been  interpreted  as  grant- 
ing to  the  individual  states  the  exclusive  right  to 
use  the  police  power,  and  under  state  regulation 
this  power  has  been  exercised  by  the  towns  and 
cities  within  its  border.  Under  that  interpreta- 
tion the  nation  has  no  authority  to  exert  this 
power  within  the  different  states.  Practically  the 


22        ESSENTIALS  OF  VETERINARY  LAW 

nation  has  frequently  obtained  the  same  result  by 
the  use  of  other  powers,  or  through  moral  in- 
fluence. For  example :  Though  Congress  may  not 
have  the  power  to  determine  the  conditions  under 
which  veterinarians  shall  be  pemiitted  to  practice 
their  profession  in  the  several  states,  the  object 
may  be  obtained  indirectly.  Under  the  provision 
giving  to  Congress  exclusive  control  over  inter- 
state and  foreign  commerce,  laws  have  been  passed 
giving  to  the  Department  of  Agriculture  the 
supervision  of  the  meat  industry  and  the  trans- 
portation of  animals.  It  is  necessary  for  the 
Department  to  employ  many  veterinarians,  and 
it  may  refuse  to  consider  the  application  of 
candidates  who  have  not  graduated  from  colleges 
of  a  certain  prescribed  standard.  This  forces  all 
the  colleges  to  that  standard.  Further,  the  Depart- 
ment may  refuse,  under  suitable  laws,  to  permit 
live  stock  to  pass  from  one  state  to  another  unless 
accompanied  by  a  certificate  from  a  veterinarian 
of  approved  standing.  Neither  of  these  provisions 
would  have  influence  upon  the  right  of  a  man  to 
practice  his  profession  in  a  given  state,  except 
indirectly.  This  right  of  regulation,  depending 
as  it  does  upon  police  power,  has  always  been 
interpreted  as  belonging  to  the  individual  states. 
For  this  reason  there  would  be  great  difficulty  in 
arranging  for  such  a  license  as  would  be  operable 
in  all  the  states.  The  number  of  fully  qualified 
veterinarians  is  not  relatively  great.  Most  of  the 
present  practitioners  might  not  find  it  difficult  to 
pass  the  test  which  might  be  required  of  them 
should  they  attempt  to  move  into  another  state. 
There  is  in  this  condition  a  practical  guaranty 


POLICE  POWER  23 

that  a  man  fully  equipped  according  to  modern 
standards  would  gain  admission  to  practice  where 
he  chose.  The  medical  profession  is  overcrowded, 
and  the  consequent  difficulty  in  obtaining  recip- 
rocal licenses  has  resulted  in  schemes  for  getting 
around  the  present  condition  by  making  all  state 
boards  recognize  the  authority  of  some  national 
board.  This  condition  may  arise  in  the  veterinary 
profession.  According  to  past  decisions  such  an 
arrangement  is  constitutionally  impossible. 

13.  Alienum  Non  Laedat.  There  is  an  old  prin- 
ciple of  the  common  law  which  is  very  powerful, 
even  at  the  present  time  in  spite  of  its  age,  which 
is  known  legally  as  alienum  tuum  non  laedat;  this 
means  that  a  person  may  so  enjoy  the  use  of  his 
own  property  that  it  shall  work  no  injury  to  an- 
other. This  is  one  of  the  principles  of  the  police 
power  which  plays  an  important  part  in  laws, 
ordinances,  and  executive  action,  as  well  as  in 
court  trials.  A  man  may  own  a  lot  in  town  upon 
which  he  seeks  to  build  a  livery  stable,  or  to  erect 
a  veterinary  hospital.  He  may  have  actually 
spent  a  large  amount  of  money  in  erecting  the 
building  and  putting  in  the  equipment.  There 
may  be  no  statute  or  ordinance  prohibiting  such 
use  of  the  building,  and  he  may  have  had  the  ap- 
proval of  his  plans  by  the  city  building  inspectors. 
All  these  things  may  be  true,  and  still  before  he 
attempts  to  use  his  building  for  the  purpose  in- 
tended he  may  be  checked  by  an  injunction.  The 
Massachusetts  court  held  that  it  is  not  necessary 
for  the  board  of  health  to  wait  until  a  nuisance 
has  actually  occurred  before  getting  an  injunction 


24        ESSENTIALS  OF  VETERINARY  LAW 

against  tlie  operation  of  a  livery  stable.^  A  man 
may  bum  the  refuse  upon  his  place,  but  if  that 
burning  endangers  his  neighbor's  property  he  may 
not  lawfully  so  bum  it,  even  though  there  be  no 
enacted  statute  or  ordinance  prohibiting  such 
burning.  Such  a  bonfire  would  violate  this  prin- 
ciple of  the  common  law,  and  if  he  persisted  in 
burning  his  rubbish,  and  his  neighbor's  property 
should  be  burned,  he  would  be  liable  in  civil  dam- 
ages for  the  value  of  the  property  destroyed,  and 
for  other  injuries  sustained,  because  he  violated 
this  principle.  So,  if  a  man  has  a  ^dcious  dog,  and 
he  permits  the  dog  to  run  in  the  street,  he  is  not 
so  using  his  own  property  as  to  protect  others 
from  being  injured.  If  a  man  sells  diseased  meat 
for  food,  and  the  purchaser  should  sustain  injury 
therefrom,  he  would  be  liable  in  civil  damages.  A 
ma"n  must  not  use  his  property  in  such  a  way  that 
it  will  work  injuiy  to  his  neighbor. 

It  will  be  found  that  this  principle  lies  at  the 
root  of  a  large  proportion  of  the  present  discus- 
sion, though  its  relation  thereto  may  not  always 
be  clearly  mentioned. 

14.  Police  Power  Is  Above  Private  Rights.  It 
is  evident  from  the  foregoing  that  the  police  pow- 
er of  the  state,  perhaps  as  represented  by  the  city, 
is  superior  to  private  rights.  Under  police  power 
property  may  be  seized  when  it  is  a  danger  to  the 
community.  Thus  it  frequently  happens  that 
meat  may  be  seized,  and  even  destroyed,  without 
giving  to  the  owner  any  compensation,  even 
though  there  may  be  some  value  therein,  aside 

2  Board  of  Health  v.  Tupper, 
210  Mass.  378,  96  N.  E.  109G. 


POLICE  POWER  25 

from  its  value  as  food.  (§111.)  Houses  may  be 
destroyed.  In  all  these  matters  it  is  presumed 
that  the  owner  as  well  as  others  will  be  benefited. 
Under  police  power  it  may  be  possible  to  take 
possession  of  a  house  and  use  it  as  a  hospital,  and 
without  rendering  any  compensation,  in  the  ab- 
sence of  special  statutes  covering  the  subject.  A 
man's  horse  may  thus  be  taken  from  him  tempo- 
rarily. If  property  be  taken  under  what  is  called 
eminent  domain,  it  must  be  paid  for.  This  shows 
how  easy  it  might  be  to  be  unjust  under  police 
power  unless  certain  checks  be  observed. 

In  Bacon  v.  Walker^  the  Supreme  Court  said, 
in  speaking  of  police  power,  that  the  power  of  the 
state  ''is  not  confined  as  we  have  said  to  the  sup- 
pression of  what  is  offensive,  disorderly,  or  insani- 
tary. It  extends  to  so  dealing  with  the  conditions 
which  exist  in  the  state  as  to  bring  out  of  them 
the  greatest  welfare  of  the  people." 

15.  Police  Power  Cannot  be  Alienated.  Police 
power  always  resides  in  the  state.  It  may  regu- 
late the  sale  of  liquor,  by  the  granting  of  a  license, 
or  it  may  grant  to  a  veterinarian  the  right  to  prac- 
tice his  profession,  but  in  neither  case  does  it  grant 
to  the  party  interested  an  absolute  right,  and  free 
from  control.  The  license  may  at  any  time  be 
revoked  upon  showing  sufficient  cause.  The  state 
does,  not  give  away,  nor  sell,  its  right  of  control 
under  police  power.  The  power  is  necessary  for 
the  protection  of  the  state  and  its  citizens.  It  may 
suspend  its  control  under  certain  conditions,  but 
it  still  preseiwes  its  right  to  reassume  full  respon- 
sibility.    Under  this  power  the  state  may  abso- 

3  204  u.  S.  311. 


26        ESSENTIALS  OF  VETERINARY  LAW 

lutely  prohibit,  or  it  may  supervise  and  regulate 
a  condition  or  a  thing  so  far  as  it  may  seem  to  be 
necessaiy  for  the  good  of  the  public.  The  laws  of 
New  York  give  to  the  board  of  aldermen  of  the 
city  of  New  York  authority  to  pass  ordinances 
regulating  the  keeping  of  dogs ;  and  to  the  board 
of  health  power  is  given  to  publish  additional  pro- 
visions for  the  security  of  life  and  health  in  the 
city  of  New  York,  not  inconsistent  with  the  con- 
stitution and  laws  of  the  state.  The  city  did  make 
an  ordinance  regulating  the  presence  of  dogs  upon 
the  streets  and  in  public  places.  Thereafter  the 
board  of  health  published  an  additional  regulation 
requiring  muzzling,  and  the  action  of  the  board  of 
health  was  attacked  on  the  ground  that  the  power 
of  the  city  having  once  been  exercised  in  the 
ordinance  passed  by  the  aldermen,  the  board  of 
health  could  not  make  additional  regulation  of  the 
subject  The  court  held  that  such  a  construction 
would  so  seriously  interfere  with  the  jurisdiction 
of  the  board  of  health  as  to  make  its  power  to  pass 
health  regulations  very  difficult,  and  the  public 
health  would  thus  lack  the  protection  desired.^ 
In  other  words,  whenever  the  state  or  city  grants 
certain  privileges,  it  does  so  with  the  implied 
understanding  that  the  parties  favored  will  not 
use  their  privileges  to  the  injury  of  others.  Neither 
city  nor  state  will  permit  a  nuisance. 

16.  No  Property  Right  in  Articles  Acquired  or 
Used  Contrary  to  Law.  There  is  no  property 
right  in  things  made,  acquired  or  used  contrary 

4  People  ex  rel.  Knoblauch  v. 
Warden  of  City  Prison,  153  N. 
Y.  Sup.  463. 


POLICE  POWER  27 

to  law.  Thus,  a  building  erected  contrary  to  law 
may  be  pulled  down;  ^  but  the  material  of  whicli 
it  was  constructed  must  be  saved  for  the  owner, 
according  to  some  decisions,  for  it  was  presumably 
honestly  acquired.  Game  unlawfully  killed  may 
be  destroyed. 

17.  Due  Process  of  Law.  By  the  Fifth  and 
Fifteenth  Amendments  to  the  national  Constitu- 
tion, it  is  provided  that  property  or  liberty  shall 
not  be  interfered  with  without  due  process  of  law. 
Essentially  this  means  that  the  party  interested 
shall  be  notiiied,  and  have  an  opportunity  for  hear- 
ing and  defense.  If  this  hearing  shall  not  have 
occurred  before  the  thing  has  been  taken,  the  own- 
er has  his  opportunity  to  be  heard  afterward.  The 
burden  then  falls  upon  the  officer  who  has  taken 
the  property  to  show  that  his  taking  of  it,  and 
perhaps  his  destruction  of  it,  was  lawful  and 
necessary.  If  he  cannot  so  prove,  he  will  be  con- 
sidered as  having  acted  unlawfully.  Since  the 
laws  presume  that  officers  always  act  lawfully,  it 
is  considered  that  though  he  may  hold  an  office, 
in  that  case  he  acted  as  a  private  wrongdoer,  and 
so  is  personally  liable  for  his  misdeed.^  Thus, 
when  a  board  of  health  in  Massachusetts  ordered 
the  killing  of  a  horse  for  glanders,  and  the  court 
decided  that  the  evidence  did  not  show  that  the 
horse  was  in  fact  suffering  from  that  disease,  the 
members  of  the  board  were  forced  to  respond  in 
damages.'^     It  is  very  evident  that  it  would  be 

BEichenlaub    v.    St.    Joseph,  e  Public   Health,    273,   364- 

113  Mo.  395,  18  L.  E.  A.  590;  366. 

King  V.  Davenport,  98  111.  305 ;  7  Miller  v.  Horton,  152  Mass. 

Hine  v.   New  Haven,  40  Conn.  540. 

478. 


28        ESSENTIALS  OF  VETERINARY  LAW 

easier  to  prove  the  existence  of  the  disease  before 
the  horse  was  destroyed  than  it  would  be  after- 
ward. 

Due  process  does  not  necessarily  mean  that  there 
must  be  a  trial  in  court.  The  same  object  may  be 
secured  through  a  hearing  before  an  executive 
officer,  or  it  may  be  secured  beforehand  by  the 
passage  of  a  statute  or  ordinance.  It  is  presumed 
that  while  the  enactment  is  pending  it  may  be 
attacked,  or  after  its  passage  any  one  desiring  to 
do  so  may  then  attack  it  in  court.  The  courts  will 
not  permit  arbitrar^^  action.^ 

18.  Nuisance.  The  basis  of  almost  all  public 
health  operations  is  found  in  the  law  of  nuisance. 
A  nuisance  is  a  thing  or  condition  which  tends  to 
work  an  injury,  either  to  a  limited  number  of  in- 
dividuals, or  to  the  community.  If  it  endangers  the 
public  it  is  called  a  public  nuisance.  If  it  endan- 
gers only  a  few  persons  it  is  regarded  as  a  private 
nuisance.  The  remedy  for  private  nuisances  is 
found  in  civil  suits.  That  for  a  public  nuisance 
must  be  found  either  in  a  civil  suit,  a  criminal 
prosecution,  or  in  executive  action.  An  infectious 
disease  is  a  nuisance,  and  therefore  it  is  custom- 
ary to  institute  a  quarantine.  This  is  done  un- 
der the  police  power.  A  rabid  dog  is  a  nuisance, 
and  because  the  dog  is  thus  rendered  useless,  and 
valueless,  he  is  ordinarily  killed.  Property  mis- 
used, as  for  a  house  of  ill  fame,  or  for  the  illegal 
selling  of  liquor,  is  a  nuisance.  The  owner  may 
be  punished  criminally,  and  further  misuse  may 
be  prevented  by  an  injunction.    A  man  possessing 

8  Public  Health,  Chap.  VII, 
and  273. 


POLICE  POWER  29 

an  animal  infected  with  a  commnnicable  disease 
may  be  assessed  damages  by  a  court  if  through  his 
negligence  the  disease  spreads  to  other  animals 
of  his  neighbors.^ 

19.  Nuisance  Per  Se,  and  In  Posse.  A  nuisance 
per  se  is  one  which  is  essentially  a  nuisance.  A 
mad  dog  is  such  a  nuisance.  It  should  be  abated 
without  question.  A  nuisance  in  posse  is  one 
which  may  be  a  nuisance  according  to  circum- 
stances. A  manure  pile  has  a  commercial  value 
in  some  communities,  and  it  may  exist  without 
endangering  any  person  or  property.  When  it  is 
located  in  a  city,  and  is  so  maintained  as  to  breed 
flies  and  rats,  it  becomes  in  fact  or  in  esse  a 
nuisance,  and  as  such  should  be  abated.  A  rat 
is  always  a  nuisance  per  se,  and  should  be  extermi- 
nated. An  animal  infected  with  a  communicable 
disease  which  is  curable  is  a  nuisance,  but  not 
one  per  se.  As  such  it  may  properly  be  so  guarded 
as  to  prevent  the  spread  of  the  disease,  but  the 
officer  would  not  be  justified  in  ordering  its  de- 
struction, unless  its  value  were  insignificant  as 
comjjared  with  the  expense  of  quarantine.  Be- 
cause a  nuisance  per  se  is  a  public  danger,  it  has 
no  value,  and  there  can  be  no  property  right 
therein.  A  nuisance  in  posse  has  a  value  often- 
times, and  there  may  be  a  property  right  therein 
which  must  be  respected.  The  building  used  for 
an  illicit  liquor  traffic  is  a  nuisance  in  esse;  that 
is  as  used  it  is  a  nuisance,  but  the  nuisance  is  not 
in  the  building  itself,  but  in  its  use.  The  building- 
may  be  put  to  other  uses,  and  on  that  ground  the 
court  might  not  justify  its  destruction. 
9  Public  Health,  Chap.  VTII. 


30        ESSENTIALS  OF  VETERINARY  LAW 

20.  Nuisance  a  Question  of  Fact.  The  question 
of  nuisance  is  one  of  fact,  not  of  statute  nor  of  opin- 
ion. ^^  To  declare  a  thing  a  nuisance  does  not  make 
it  so;  and  this  is  true  whether  the  declaration  be 
made  by  an  executive  officer,  or  by  the  legislative 
body.  In  other  words,  a  declaration  that  a  thing 
is  a  nuisance  must  be  capable  of  proof,  by  showing 
that  the  thing  or  condition  either  actually  does 
produce  harm,  or  is  likely  to  do  so.  The  Supreme 
Court  said :  "  *'It  is  a  doctrine  not  to  be  tolerated 
in  this  country,  that  a  municipal  corporation  with- 
out any  general  laws,  either  of  the  city  or  of  the 
state  within  which  a  given  stinicture  can  be  shown 
to  be  a  nuisance,  can,  by  its  mere  declaration  that 
it  is  one,  subject  it  to  removal  by  any  person  sup- 
posed to  be  aggrieved,  or  even  by  the  city  itself. 
This  would  place  every  house,  every  business,  and 
all  property  in  the  city  at  the  uncontrolled  will  of 
the  temporary  local  authorities."  In  a  similar 
way  the  supreme  court  of  Oregon  emphasized  the 
question  of  fact.  The  charter  of  the  city  con- 
ferred upon  the  municipality  the  power  to  declare 
what  shall  constitute  a  nuisance,  as  is  very  com- 
mon in  all  states,  but  the  court  said :  ^-  * '  An 
ordinance  cannot  transform  into  a  nuisance  an 
act  or  thing  not  treated  as  such  by  the  statutory 
or  common  law."  Whether  the  declaration  of  a 
thing  or  condition  or  act  to  be  a  nuisance  be  made 
by  the  legislative,  executive,  or  judicial  branch  of 
government,  it  is  presumed  that  the  determination 
has  been  reached  by  a  species  of  judicial  investi- 

10  Public  Health,  201.  12  Grossman    v.    Oakland,    36 

11  Yates     V.     Milwaukee,     10      L.  E.  A.  593,  30  Ore.  478,  41 
Wall.  497.  Pae.  5. 


POLICE  POWER  31 

gation  of  the  facts,  and  that  it  is  not  the  result  of 
either  prejudice  or  emotion.  "While  a  city  cannot 
by  ordinance  make  that  to  be  a  nuisance  which  is 
not  such  in  fact,  where  there  is  an  honest  dif- 
ference of  opinion  the  determination  of  the  com- 
munity as  expressed  in  a  city  ordinance  is  gen- 
erally held  to  be  conclusive  for  that  community.^^ 
A  resolution  of  a  board  of  health  declaring  that 
certain  property  is  a  nuisance  is  not  a  judicial 
determination  of  the  question,  and  its  opinion  thus 
expressed  is  subject  to  deteraiination  by  the 
court.^^ 

Ordinarily  legislative  determination  is  held  to 
be  conclusive  as  to  whether  or  not  a  thing  or  con- 
dition shall  be  deemed  a  nuisance ;  but  this  is  not 
always  so.  If  the  legislature  authorizes  an  act  to 
be  done  which  without  the  statute  would  consti- 
tute a  public  nuisance,  such  an  act  is  thereby  made 
lawful,  and  cannot  legally  be  considered  a  nui- 
sance, unless  the  legislature  exceeded  its  authority, 
since  a  public  nuisance  per  se  cannot  be  lawful. ^^ 
Just  as  the  declaring  that  to  be  a  nuisance  does 
not  make  it  so  when  it  is  not  a  nuisance  in  fact, 
so,  conversely,  for  the  legislature  or  city  council 
to  declare  a  thing  not  to  be  a  nuisance  when  it  is 
really  a  nuisance,  does  not  protect  the  owner  or 
doer  of  the  act  in  continuing  thus  to  injure  or 
endanger  others.  In  granting  a  permit,  as  for  the 
maintenance  of  a  factory,  it  is  presumed  that  the 
business  will  be  so  conducted  as  not  to  create  a 
nuisance.    It  is  hardly  to  be  presumed  that  legis- 

i3Bushnell  v.  C,  B.  &  Q.  R.  i-i  Sopher  v.   State,   169   Tnd. 

E.  Co.,  259  111.  391.  177,  81  N.  E.  913. 

14  Gaines  v.  Waters,  64  Ark. 
609, 


32        ESSENTIALS  OF  VETERINARY  LAW 

lators  are  so  well  posted  as  to  the  possibilities  of 
a  certain  manufacture  that  they  may  know  that  it 
cannot  be  so  conducted  as  not  to  create  a  nuisance. 

A  theatre  is  not" a  nuisance  per  se,  and  a  declara- 
tion of  a  city  would  not  make  it  so,  unless  it  were 
in  fact  a  nuisance.^ ^  It  is  only  when  it  is  con- 
ducted in  an  improper  manner,  as  to  plays  pro- 
duced, or  as  to  the  structure  of  the  building,  or  its 
maintenance,  that  it  could  be  generally  considered 
a  nuisance.  It  is  a  nuisance  if  it  be  not  furnished 
with  proper  exits,  or  if  it  be  improperly  ventilated, 
or  if  the  aisles  be  narrow  and  permitted  to  be 
filled ;  for  in  these  cases  human  life  is  endangered. 
It  may  be  a  nuisance  by  reason  of  its  detrimental 
effects  upon  the  morals,  especially  of  children,  if 
the  plays  produced  be  of  objectionable  moral 
teaching. 

A  large  number  of  hogs  kept  on  property  adja- 
cent to  a  city,  so  that  odors  therefrom  were  of- 
fensive to  people  living  in  the  neighborhood,  and 
to  those  who  passed  along  the  streets,  and  im- 
paired the  health  of  the  citizens  and  diminished 
the  value  of  their  property,  was  found  to  be  a 
public  nuisance  by  the  Kansas  supreme  court, 
which  held  that  it  should  be  perpetually  enjoined.^ '^ 
The  maintenance  of  a  hog  ranch  where  garbage, 
etc.,  is  to  be  fed  may  be  at  the  same  time  a  public 
and  a  private  nuisance.^^  A  private  citizen  is  held 
entitled  to  sue  to  abate  a  nuisance,  although  the 
city  charter  authorized  the  common  council  to 

16  City  of  Chicago  v.  Weber,  hearing  overruled,  88  Kas.  164, 
246  111.  304,  92  N.  E.  859.  127  Pac.  540. 

17  Kansas  City  v.  Sihler  Hog  isSeigle  v.  Bromley,  22  Col. 
Cholera  Serum  Co.,  87  Kas.  786,  App.  189,  124  Pac.  191. 

125  Pac.   70.     Petition   for   re- 


POLICE  POWER  33 

declare  and  abate  a  nuisance,  and  the  common 
council  had  not  so  declared  the  thing  sought  to  be 
abated  to  be  a  nuisance.^  ^  The  question  of  nui- 
sance is  a  fact  to  be  proven. 

21.  Changes  in  Legal  Nuisances.  Changes  in 
surroundings  or  in  science  may  make  that  a 
nuisance  which  before  was  not  so  legally.  A  man 
may  have  been  conducting  a  livery  stable  in  a 
certain  building  without  creating  a  nuisance;  but 
if  an  apartment  building  be  erected  on  the  adjoin- 
ing lot,  the  odors  and  the  noise  arising  from  the 
stable  may  work  such  injury  to  the  apartment 
owner  that  it  will  be  considered  a  nuisance,  and 
ordered  abated  by  removing  the  horses.^^ 

Formerly  a  manure  pile  was  regarded  as  a 
nuisance  when  it  was  near  and  large  enough  so 
that  its  odor  was  offensive,  or  the  sight  was  re- 
pugnant. Practically  it  might  be  said  that  under 
the  old  idea  a  manure  pile  was  a  nuisance  in  pro- 
portion to  its  size,  and  to  the  proximity;  and  if 
it  chanced  to  be  a  hundred  feet  away  it  would 
hardly  be  deemed  a  nuisance.  Modern  scientific 
advances  have  changed  this.  The  house  fly  is 
known  to  be  a  carrier  of  infectious  diseases  from 
one  person  to  another.  The  fly  is  a  nuisance 
per  se.  Flies  breed  in  stable  manure.  So  do  rats, 
and  rats  are  also  nuisances  per  se.  The  manure 
pile  is  therefore  regarded  as  a  nuisance  because 
flies  and  rats  there  breed.  Now  a  fly,  when  he  first 
emerges,  may  go  in  a  straight  flight  five  or  six 
hundred  feet,  and  rats  easily  travel  as  far. 
Though  the  pile  may  not  be  seen  or  its  odor  de- 

19  Humphrey  v.  Dunnells,  21  20  Oehler    v.    Levy,    234    111. 

Cal.  App.  312,  131  Pac.  761.  595,  85  N.  E.  271. 


34        ESSENTIALS  OF  VETERINARY  LAW 

tected,  under  our  present  scientific  infonuation  a 
manure  pile  may  be  considered  as  a  nuisance  if 
located  within  a  radius  of  six  hundred  feet.  For- 
merly it  was  only  a  i:>rivate  nuisance  at  best,  but 
since  flies  are  dangerous  to  the  public  health  the 
pile  now  must  be  regarded  as  a  public  nuisance, 
and  the  owner  may  be  subjected  to  a  criminal 
prosecution  even  though  there  be  no  specific  en- 
actment so  mentioning  manure  piles. 

A  manure  pile  which  grows  at  the  rate  of  a 
wagon  load  a  week  is  not  likely  to  produce  many 
flies,  unless  the  ground  around  it  becomes  satu- 
rated. The  outside  of  the  pile  is  too  fresh  for  the 
maggots  to  have  grown  much,  and  the  inside  of 
the  pile  has  generally  developed  so  much  heat  as 
to  kill  those  that  have  begun  to  grow.  The  little 
pile  by  the  side  of  a  blacksmith  shop,  which  takes 
a  month  to  produce  a  wheelbarrow  load,  is  an  ideal 
place  for  the  breeding  of  flies.  Therefore,  where- 
as formerly  it  was  only  the  large  piles  which  were 
considered  as  dangerous,  now  the  veiy  small  piles 
must  be  regarded  as  far  more  dangerous,  and  so 
greater  nuisances. 

It  is  such  cases  as  the  manure  pile  which  show 
another  very  great  difference  in  the  law  of 
nuisance.  Foraierly  the  scientific  ideas  were  in- 
definite, and  consequently  health  administration 
was  largely  left  to  individual  communities,  and 
was  judged  according  to  local  needs  and  preju- 
dices. Now,  with  the  advancement  of  science  it 
is  quite  possible  to  make  certain  general  laws  and 
applications.  Health  measures  may  therefore 
assume  scientific  exactness,  and  it  is  possible  for 
any  one  to  master  the  underlying  principles,  and 


POLICE  POWER  35 

know  beforehand  something  of  his  fjersonal  rights 
and  liabilities.  Kats  are  nuisances  because  they 
destroy  grain  and  other  property  worth  millions 
of  dollars  each  year  in  the  United  States.  Scien- 
tific advances  have  shown  that  they  are  active  in 
the  spread  of  plague  and  very  likely  of  other  dis- 
eases. They  are  great  travelers.  An  infected  rat 
might  easily  find  his  way  into  a  freight  car  in 
New  Orleans,  and  land  in  St.  Louis  or  Chicago, 
and  there  infect  other  rats,  that  in  turn  might  in- 
fect human  beings.  Though  there  are  infected 
rats  in  New  Orleans,  it  would  hardly  be  suspected 
by  the  uninitiated  that  there  Avas  danger  of  con- 
tracting plague  in  Chicago,  and  a  case  might  be- 
come well  developed  before  the  correct  diagnosis 
would  be  made.  So  long  as  it  was  thought  that 
tlie  rat  was  only  a  danger  to  property  the  state 
officers  might  very  reasonably  leave  the  protec- 
tion of  property  from  this  danger  to  the  individual 
OAvners;  but  now  that  the  danger  to  the  public 
is  known,  and  it  is  a  danger  which  lurks  unsus- 
pected, the  state  not  only  would  have  a  right,  but 
it  might  be  considered  a  duty,  to  enact  laws  which 
would  restrict  the  breeding  places  of  those  pests, 
and  also  require  the  rat-proofing  of  buildings  in 
cities  of  a  given  size. 

22.  Treatment  of  Nuisances.  A  nuisance  may 
be  prohibited,  abated,  or  regulated.  It  may  be 
prohibited,  by  a  state  statute,  a  city  ordinance,  or 
by  an  injunction  issued  by  the  court.  Violation 
of  the  prohibition  makes  the  violator  subject  to 
criminal  prosecution.  It  may  be  regulated,  as  by 
ordinances  which  make  the  sale  of  liquor  permis- 
sible only  within  certain  hours.    More  frequently 


36        ESSENTIALS  OF  VETERINARY  LAW 

the  business  may  be  conducted  only  under  certain 
conditions  which  preserve  for  the  community  such 
a  supervision  as  to  limit  the  chance  of  harm  re- 
sulting, as  in  the  dairy  and  meat  producing  indus- 
tries. 

A  nuisance  per  se  should  be  abated.  This  is 
frequently  accomplished  by  the  destruction  of  the 
thing  itself;  or  it  may  be  abated  by  so  altering 
the  conditions,  as  of  manufacture,  as  to  remove  the 
possibility  of  danger.  An  unguarded  excavation 
by  the  side  of  a  public  walk,  into  which  passing 
individuals  may  fall,  is  a  nuisance.^^  It  may  be 
abated  either  by  the  erection  of  a  guard,  or  by 
filling,  but  the  guard  must  be  a  real  protection, 
such  as  would  prevent  accident.  Summary  abate- 
ment, though  often  necessary,  is  not  always  either 
permissible  or  advisable.  If  the  thing  destroyed 
have  real  value,  the  officer  or  other  person  causing 
its  destruction  may  be  held  liable  for  damages.-^ 
A  stable  is  not  a  nuisance  per  se,  and  every  prop- 
erty holder  has  the  right  to  maintain  one,  even  in 
a  city,  unless  the  condition  of  the  particular  stable 
arising  through  defendant's  negligence  is  such 
as  to  render  it  a  nuisance.-^  The  fact  that  the 
stable  is  a  nuisance  does  not  justify  the  destruc- 
tion of  the  building.2^ 

A  person  or  an  animal  afflicted  with  a  communi- 
cable disease  is  a  nuisance  in  esse.  The  disease 
germ  is  a  nuisance  per  se.     Unfortunately  this 

21  Town     of     Newcastle     v.  23  Porges    v.    Jacobs    (Ore.), 
Grubbs,  171  Ind.  482,  86  N.  E.       147  Pac.  396. 

757.  24  Miller    v.    Burch,    32    Tox. 

22  Miller  v.  Horton,  152  Mass,      208. 
540;      Pearson     v.     Zehr,     138 

111.  48. 


POLICE  POWER  37 

nuisance  per  se  cannot  be  destroyed  immediately 
without  the  destruction  of  the  person  or  the  ani- 
mal. Ordinarily  these  cases  are  treated  in  some 
sort  of  quarantine.  In  the  case  of  diseased  ani- 
mals public  weal  frequently  calls  for  the  destruc- 
tion of  the  infected  individuals,  and  sometimes 
this  must  also  include  all  those  that  have  been 
exposed  to  the  infection.  A  tubercular  cow  is  a 
nuisance,  in  that  she  is  a  danger  to  other  animals, 
or  to  the  users  of  her  milk.  However,  she  may 
have  a  special  value  for  breeding  purposes,  and 
her  milk  may  be  pasteurized  so  as  to  reduce,  or 
remove,  danger  from  that  source;  and  she  may  be 
kept  so  isolated  as  to  not  endanger  other  animals. 
"While  it  is  generally  held  that  no  compensation 
is  due  to  the  owner  for  the  destruction  of  a  nui- 
sance under  police  power,  in  such  cases  as  this  the 
difficulty  in  destroying  the  nuisance  without  also 
destroying  valuable  property  has  caused  the  estab- 
lishment of  a  practice,  as  a  matter  of  public  policy, 
of  rendering  some  compensation  to  the  owner. 
Ajoparently  this  is  more  a  matter  of  policy  than 
of  right.  This  will  be  more  fully  considered  in  a 
later  section.    (§113.) 

One  of  the  powerful  weapons  for  the  restraint 
and  prevention  of  nuisances  is  found  in  civil  suit. 
This  may  be  maintained  either  by  the  public,  or 
by  private  individuals.  If  it  be  a  private  nuisance 
it  must  be  by  the  parties  injured,  and  a  private 
party  may  only  sue  for  recovery  of  damages  from 
the  maintenance  of  a  public  nuisance  when  his  own 
property,  or  person,  shall  have  been  especially  in- 
jured.^^    Since  it  is  not  to  be  presumed  that  a  nui- 

25Hoyt   V.    McLoughlin,    250 
111.  442,  95  X.  E.  464. 


38        ESSENTIALS  OF  VETERINARY  LAW 

sance  will  be  permitted  to  continue  if  it  be  possible 
to  abate  it  by  expenditure  of  labor  and  money,  tlie 
measure  of  damages  will  be  such  damages  as  have 
already  occurred.^*^  In  a  suit  for  damages  resulting 
from  the  nuisance  from  maintenance  of  a  stable, 
the  court  held  that  the  measure  of  damages  is  the 
reduction  in  the  value  of  the  plaintiff's  property, 
plus  compensation  for  the  plaintiff's  discomfort, 
and  not  the  depreciation  in  the  value  of  the  plain- 
tiff's property.^'^ 

23.  City  Must  Not  Commit  Nuisance.  A  city 
has  no  right  to  commit  a  nuisance,  such  as  the  pol- 
lution of  a  stream  to  such  a  degree  that  it  injures 
the  lower  riparian  owners.  This  offense  is  most 
often  committed  by  the  discharge  of  crude  sewage 
into  natural  waters.  ''A  municipal  corporation 
has  no  more  right  to  injure  the  waters  of  a  stream 
or  the  premises  of  an  individual  by  the  discharge 
of  sewage  into  the  stream  than  a  natural  person, 
and  incurs  the  same  liability  by  so  doing.-^  This 
does  not  mean  that  the  city  has  no  right  to  empty 
sewage  into  a  stream,  but  that  it  must  not  commit 
nuisance  by  so  doing.  The  sewage  may  be  so 
treated  that  in  the  place  of  making  a  nuisance  it 
will  tend  to  remove  the  nuisance  already  existing 
in  the  stream.^^  The  fact  that  a  city  has  been 
discharging  its  sewers  into  a  stream  does  not  give 
it  a  right  so  to  do.  The  city  may  have  grown 
from  a  little  village,  and  while  the  water  of  the 

26  Southern  Ky.  Co.  v.  Poet-  151  N.  C.  415,  66  S.  E.  337; 
ker,  46  Ind.  App.  295,  91  N.  E.  State  Bd.  of  Health  v.  Green- 
610.  ville,  98  N.  E.  1019,  86  Ohio  1. 

27  Porges  V.  Jaoobs  (Ore.),  20  Atty.  Gen '1  v.  Birming- 
147  Pac.  396.  ham,   Tame   and    Kea    Dr.   Dis. 

28  Little  V.   Town   of   Lenoir,  L.  K.  C.  D.  (1910),  1  Ch.  48. 


POLICE  POWER  39 

stream  might  not  be  perceptibly  injured  by  the 
sewage  of  the  village,  that  of  the  city  might  be 
dangerous.  This  matter  is  more  fully  discussed 
in  my  work  on  The  Legal  Peinciples  of  Public 
Health  Administeation,  §  §  440  and  following,  to 
which  reader  is  referred. 

The  particular  point  interesting  to  stock  han- 
dlers in  this  regard  is  the  danger  to  a  stream  nin- 
ning  through  a  pasture.  The  chemicals  used  in 
a  factory  may  render  the  stream  useless  for  the 
watering  of  the  stock,  or  even  dangerous.  This  is 
a  special  damage  to  the  owner  of  the  pasture  land, 
and  he  has  a  right  of  individual  action,  independ- 
ent of  any  criminal  prosecution,  or  other  steps 
taken  by  the  governmental  authorities.  What  the 
property  owner  desires  is  the  abatement  of  the 
nuisance.  A  suit  for  damages  might  very  likely 
not  accomplish  the  abatement,  and  repeated  suits 
would  thus  be  brought,  for  the  limit  of  damages 
is  that  which  can  be  shown  to  have  occurred.  The 
proper  action  here  is  an  application  for  an  injunc- 
tion, after  which  an  action  in  damages  may  or  may 
not  be  advisable.^*^     (See  also  §  106.) 

24.  Authority  for  Abatement,  Not  for  Construc- 
tion. Unless  the  power  be  distinctly  given,  the 
authority  conferred  upon  an  officer  or  department 
to  abate  a  nuisance  does  not  carry  with  it  the 
authority  to  direct  any  special  style  of  constmc- 
tion.  Thus,  authority  to  abate  a  nuisance  at  the 
expense  of  the  owner  does  not  empower  the  board 
of  health  to  require  a  new  building,  more  in  accord 

30  Bernard  v.  Willamette  Box      pendent  Light  &  Water  Co.,  74 
&  Lumber  Co.,  64  Ore.  223,  129       Wash.  373,   133  Pac,  592. 
Pac.     1039;     Lavner     v.     Inde- 


40        ESSENTIALS  OF  VETERINARY  LAW 

with  the  advanced  ideas  in  sanitary  construction.''^ 
Neither  does  it  empower  the  board  to  direct 
changes  of  such  a  scale  as  to  bring  it  within  the 
definition  of  public  works,  and  assess  it  upon  the 
property."^  The  object  sought  is  the  abatement, 
and  the  jJi'operty  owner  is  obliged  to  abate,  but 
he  is  not  obliged  to  abate  in  the  specific  manner 
directed  by  the  executive,  unless  that  specific 
authority  was  given. •^■'^ 

Even  where  the  authority  to  direct  construc- 
tion may  have  been  given  and  exercised,  where 
plans  have  been  approved  by  the  departmental 
engineer,  this  does  not  justify  the  continuance  of 
a  nuisance.  The  engineer  may  have  made  an  error 
in  his  computation;  or  he  may  have  gone  at  his 
work  blindly,  and  without  sufficient  knowledge  of 
the  subject;  or  he  may  have  been  influenced  in  his 
judgment.  After  approval  of  the  plans  by  the 
state  board  of  health  it  was  found  that  when  the 
Collingsworth  Sewerage  Works  were  put  in  opera- 
tion, as  an  actual  fact,  a  nuisance  was  committed. 
The  court  said  that  no  matter  hew  expensive  the 
works  may  have  been,  or  how  unprofitable  the 
enterprise  might  be,  neither  element  was  sufficient 
to  absolve  the  company  from  maintaining  a  nui- 
sance, due  to  faulty  construction  of  the  plant,  or 
to  negligence  in  its  operation.'^^ 

81  Eekhardt    v.    Buffalo,    15G  3-  Dm-gin  v.  Minot,  203  :\]ass. 

N.  Y.  658.  26,  89  N.  E.  1-14. 

32Haag  V.  City  of  Mt.  Ver-  34  State       v.       Collingsworth 

non,  58  N.  Y.  S.  585,  41  App.  Sewerage  Co.,  85  N.  J.  L.  567, 

Div.  366.  89  Atl.  525, 


PART  II 

PERTAINING  TO  VETERINARY 
PRACTICE 


CHAPTER  III. 

REGULATION  OF  THE  PRACTICE  OF  VETERINARY 
SURGERY. 

§  30.  Authority  of  the  State.  §  37.  The  License  Itself. 

§  31.  License  to  Practice.  §  38.  Revocation  of  License. 

§  32.  Standards  for  License.  §  39.  Attorney    for    Board    of 
§  33.  Appointment    of   Examin-  Examiners. 

ers.  §  40.  "What     Constitutes     Prac- 
§  34.  Exceptions.  tiee  of  Veterinary  Med- 

§35.  Certificate  in  the  Place  of  ieine  or  Surgery? 

License.  §  41,  Practice  as  a  Company. 

§36.  License  by  Reciprocity.  §42.  Prosecutions,  by  Whom? 

30.  Authority  of  the  State.  According  to  the 
American  legal  system,  each  state  has  the  guar- 
dianship of  the  welfare  of  people  and  property 
within  its  own  boundaries.  Under  police  power 
it  has  not  only  the  right,  but  also  the  duty,  to  enact 
such  laws,  and  enforce  such  regulations  as  seem 
to  be  necessary  to  insure  the  good  of  its  citizens. 
Veterinary  medicine  and  surgery  is  a  branch  of 
the  general  practice  of  medicine  and  surgery,  and 
in  point  of  legal  principles  involved  it  in  no  wise 
differs  from  those  pertaining  to  the  practice  of 
those  arts  among  human  beings.  Both  involve 
the  same  general  lines  of  study.  While  the 
diseases  of  human  beings  differ  in  many  instances 
from  those  afflicting  animals,  and  while  the  ap- 
propriate treatment  may  vary,  essentially  the  two 
sciences  are  the  same.  In  the  past  the  treatment 
of  human  beings  has  attracted  verj'-  much  more 
attention,  and  has  therefore  advanced  more  both 

43 


44        ESSENTIALS  OF  VETERINARY  LAW 

as  a  science  and  as  an  art.  As  a  natural  conse- 
quence its  regulation  by  law  became  apparent  long- 
before  a  similar  restriction  was  required  in  the 
practice  of  the  arts  upon  these  lower  animals. 

If  in  the  past  these  veterinarians  were  looked 
upon  as  a  lower  rank  of  men,  it  was  because  there 
was  generally  little  attempt  at  making  their  prac- 
tice really  scientific.  The  blacksmith  who  became 
''knowing  with  horses,"  and  the  dairy  man  who 
had  considerable  experience,  were  therefore  con- 
sulted by  their  neighbors  in  time  of  need.  As  a 
rule  they  were  men  of  very  limited  education,  and 
so  soon  as  they  really  attempted  to  make  a  special 
study  of  the  subject  they  abandoned  the  treatment 
of  animals  for  the  treatment  of  men.  Some  of 
them,  during  their  transition  period,  maintained 
two  offices.  In  one  locality  they  were  known  as 
' '  boss  doctors, ' '  while  in  the  other  they  attempted 
to  be  known  as  * '  doctors  of  medicine, ' '  but  as  soon 
as  possible  the  first  practice  was  dropped  for  the 
''more  respectable"  one.  The  result  was  that 
when  the  medical  profession  was  already  filled 
with  members  striving  for  a  living,  that  of  the 
veterinarian  lacked  competent  practitioners.  In 
the  medical  ranks  it  became  apparent  that  the 
good  of  all  concerned  demanded  that  the  practice 
be  so  restricted  as  to  exclude  the  most  incompetent 
pretenders,  and  laws  were  accordingly  passed,  and 
disappointed  practitioners  thus  excluded  tested 
the  provisions  in  the  courts.  It  is  only  recently 
that  it  has  been  possible  to  draw  the  lines  between 
the  self-made  pretenders  in  veterinary  practice 
and  the  conscientious  students  of  the  science. 
While  most  of  the  points  have  been  decided  with 


PRACTICE  OF  VETERINARY  SURGERY  45 

regard  to  human  treatment,  tlie  legal  right  of  the 
state  is  the  same  in  veterinary  regulation.^ 

The  first  case  which  I  have  found  in  which  the 
right  to  regulate  the  practice  of  medicine  was 
made  distinct  from  the  holding  of  a  medical  degree 
was  the  famous  Bonham  case  during  the  reign  of 
James  I  of  England.  Bonham  had  been  gradu- 
ated in  medicine  from  the  University  of  Cambridge 
in  1595.  Under  that  diploma  he  undertook  to  prac- 
tice medicine  in  London.  Henry  VIII  had  granted 
to  the  College  of  Physicians  of  London  (which  is 
not  a  teaching  college  as  we  know  them),  the 
supervision  of  the  practice  of  medicine  within 
the  city  of  London,  or  within  seven  miles  of  the 
city,  and  no  person  was  to  be  permitted  to  so  prac- 
tice unless  he  be  a  member  of  the  said  College  of 
Physicians.  King  Henry  said  that  he  ''held  it 
necessary  to  restrain  the  boldness  of  wicked  men 
who  professed  physic  more  for  avarice  than  out 
of  confidence  of  a  good  conscience, ' '  The  statute 
of  Henry  permitted  the  imposition  of  a  fine  upon 
violators,  and  by  a  later  amendment  violators 
might  be  imprisoned.  Bonham  appeared  before 
the  board  of  censors  of  the  College  of  Physicians 
several  times,  but  failed  to  pass  the  required  exam- 
ination, and  he  was  forbidden  to  practice.  He 
persisted,  and  in  1606  he  was  arrested  by  the 
censors,  and  was  tried  by  them,  fined  and  im- 
prisoned. He  brought  action  against  the  censors 
for  false  imprisonment,  and  the  case  was  heard 
before  Lord  Coke.^  Lord  Coke  held  that  under 
the  terms  of  the  statutes  no  man  could  be  impris- 

1  Public  Health,  425.  2  8  Coke,  107a. 


46        ESSENTIALS  OF  VETERINARY  LAW 

oned  unless  he  were  guilty  of  malpractice,  but  that 
the  law  clearly  provided  for  a  fine.  However,  he 
further  held  that  ''the  censors  cannot  be  judges, 
ministers,  and  parties;  *  *  *  and  it  appears 
in  our  books,  that  in  many  cases  the  common  law 
will  control  acts  of  parliament,  and  sometimes 
adjudge  them  to  be  utterly  void;  for  when  the 
act  of  parliament  is  against  common  right  and 
reason;  or  repugnant  and  impossible  to  be  per- 
formed, the  common  law  will  control  it,  and  ad- 
judge such  act  to  be  void."  So  much,  therefore, 
of  the  statute  as  contemj^lated  that  the  censors  be 
at  the  same  time  complainants,  executives  and 
judges  in  regulating  the  practice  of  medicine,  he 
held  void.  He  also  held  that  the  trial  must  be  sub- 
stantiated by  a  legal  record  of  the  proceedings,  in 
order  to  justify  either  fine  or  imprisonment.  With 
slight  changes  in  the  wording  the  decision  of  Lord 
Coke  is  good  law  today  in  the  United  States.  It 
gives  the  gist  of  the  whole  matter.  The  state  has 
the  right  to  control  the  practice,  though  the  per- 
son may  hold  a  diploma.  He  may  be  forced  to  take 
an  examination  to  demonstrate  his  fitness.  He 
may  be  punished  for  violating  the  provisions  of 
the  statute  enacted. 

It  has  been  repeatedly  held  that  the  states  have 
authority  thus  to  regulate  the  practice,  and  that 
this  power  is  reserved  to  the  individual  states.^ 
The  law  as  to  veterinary  practice  was  tested  in 

3  Dent  V.  West  Virginia,  129  Eeetz  v.    Michigan,    188   U.    S. 

U.    S.    114;     Hawker    v.    New  505;    Watson  v.   Maryland,  105 

York,  170  U.  S.  189 ;  Jaeobson  Md.  650,  66  Atl.  635 ;  Ex  parte 

V.  Massachusetts,  197  U.  S.  11 ;  Spinney,  10  Nev.  323. 
State  V.  Hathaway,  115  Mo.  36 ; 


PRACTICE  OF  VETERINARY  SURGERY  47 

Nebraska,  and  the  court  held  that  "Laws  provid- 
ing for  the  examination  and  licensing  of  persons 
practicing  veterinary  medicine,  and  forbidding 
persons  not  licensed  from  assuming  the  title  of 
Veterinary  Surgeon,  is  constitutional"  and  hence 
valid.-'    See  §§171,  172. 

31.  License  to  Practice.  The  license  is  used  for 
two  purposes  in  governmental  operations.  It  may 
be  for  taxing  purposes,  either  directly  or  indi- 
rectly; or  as  a  means  of  registration  and  regula- 
tion of  things  or  acts  possibly  dangerous  to  the 
community,  or  capable  of  being  misused  to  the 
detriment  of  the  citizens.  The  direct  use  for  pur- 
jooses  of  taxation  refers  to  such  cases  as  those  in 
which  the  state  or  city  may  require  the  issuance 
before  permitting  the  business  or  possession.  In 
these  cases  the  license  fee,  or  tax,  is  relatively  high, 
though  there  may  be  very  great  differences  in  the 
amount.  An  indirect  use  of  the  license  is  shown 
in  the  operations  of  the  Hamson  antinarcotic  law. 
This  has  been  attacked  as  an  attempt  of  the  nation 
to  use  police  power  within  the  states,  but  the  court 
has  denied  this  intent.  The  fee  charged  is  insig- 
nificant, and  probably  does  not  pay  for  the  enforce- 
ment of  the  regulation.  However,  opium  is  not 
produced  commercially  in  the  United  States. 
There  has  been  reason  for  believing  that  much  of 
the  diTig  has  been  smuggled  into  the  country,  and 
the  countiy  has  thus  been  defrauded  out  of  import 
duties  in  large  amounts.  By  the  provisions  of  the 
Harrison  law  all  lawful  holders  of  opium  and  its 

*  Ex  parte  Barnes,  and, 
Barnes  v.  State,  83  Neb.  433, 
119  N.  W.  662. 


48        ESSENTIALS  OF  VETERINARY  LAW 

derivatives  are  registered,  and  all  of  the  drug  is 
also  registered  and  so  easily  traced  from  importa- 
tion to  consumption.  Where  registration  is  the 
chief  object,  the  fee  must  be  small,  or  it  will  defeat 
itself.  Where  income  is  the  object  the  fee  may  be 
ample,  but  not  so  excessive  as  to  be  prohibitive. 
Under  police  power,  the  fee  may  be  small  for  regis- 
tration purposes,  large  for  regulative  reasons 
(such  as  high  license  in  the  liquor  business),  or 
moderate,  and  practically  supplying  the  funds  for 
enforcing  the  special  regulative  law.  This  last  is 
the  case  with  regard  to  the  license  fees  charged 
in  the  regulation  of  the  practice  of  medicine  in  any 
of  its  branches. 

32.  Standards  for  License.  The  object  of  laws 
regulating  the  practice  of  medicine  is  to  insure  the 
reasonable  competence  of  those  attempting  to 
practice.  It  rests  with  the  judgment  of  the  legis- 
lature as  to  what  kind  of  a  standard  shall  be  estab- 
lished, and  the  tendency  must  be  for  the  gradual 
elevation  of  the  standard  with  the  advance  of 
scientific  knowledge,  and  of  the  number  of  prac- 
titioners. When  practitioners  are  few,  the  stand- 
ard must  be  relativel}'-  low,  or  those  in  need  of  such 
service  may  be  deprived  of  help.  The  first  require- 
ment has  generally  been  the  possession  of  a 
diploma  from  a  legally  incorporated  medical  col- 
lege, or  an  examination  before  a  board  of  exam- 
iners composed  of  experts.  The  next  step  has  been 
to  specify  certain  standards  for  the  schools  whose 
diplomas  will  be  accepted,  and  then  to  require 
both  diploma  and  examination.  In  addition  it  is 
customary  to  require  evidence  of  good  moral  char- 
acter, for  the  intimate  relationships  which   the 


PRACTICE  OF  VETERINARY  SURGERY  49 

practice  involves,  and  the  opportunities  for  unde- 
tected fraud,  demand  this  additional  protection. 
What  shall  be  the  moral  standard,  so  long  as  it 
is  reasonable,  is  a  matter  for  the  legislature  to 
decide.^ 

Under  the  public  act  of  1899  in  Michigan,  estab- 
lishing the  State  Veterinary  Board  it  was  held 
that  the  board  had  no  discretionary  authority  to 
determine  whether  a  college  of  "Veterinary  Med- 
icine and  Surgery"  existing  under  the  Compiled 
Laws  of  1897  is  a  regular  school  or  college;  or  to 
refuse  to  give  a  certificate  to  practice  to  a  person 
holding  a  diploma  from  such  college.^*^  A  later 
statute  of  the  same  state  provided  that  no  person 
shall  be  registered  as  a  veterinarian,  or  veterinary 
surgeon,  without  proof  that  he  is  the  lawful  pos- 
sessor of  a  diploma  from  a  regular  veterinary 
college,  or  the  veterinaiy  department  of  a  state 
institution  of  learning,  or  college  of  medicine, 
having  at  least  three  sessions  of  six  months  each. 
A  veterinarian  who  had  graduated  from  such  an 
institution  made  application  for  registration  and 
vv^as  refused  by  the  board.  He  appealed  to  the 
courts,  and  the  decision  was  that  an  applicant 
must  have  actually  attended  three  courses  of  six 
months  each;  and  the  fact  that  at  the  time  he  re- 
ceived his  diploma  from  a  veterinary  college  it 
had  adopted  the  three  years  course  would  not 

5  Dent  V.  West  Virginia,  129  man   v.    State,    109    Ind.    278; 

U.    S.    114;    Hawker    v.    New  State  v.  Call  (N.  C),  28  S.  E. 

York,  170  U,  S,  189;   State  v.  517;  Collins  v.  State,  32  S.  C. 

State        Medical        Examining  R.  (U.  S.)  286. 
Board,  32  Minn.  324;    Thomp-  lo  Wise    v.    State    Veterinary 

son  V.  Hazen,  25  Me.  104 ;  State  Board,   138   Mich.  428,  101   N. 

V.  Hathaway,  115  Mo.  36;  East-  W.  562. 


50       ESSENTIALS  OF  VETERINARY  LAW 

sen-e  to  qualify  him,  if  in  fact  he  had  taken 
only  the  two  years  course  formerly  required.  ^^ 
Where  the  law  provided  that  one  who  had  prac- 
ticed veterinary  medicine  or  veterinary  surgerj", 
*'in  their  various  branches,"  for  five  years 
before  the  passage  of  the  act  could  be  regis- 
tered before  January  1,  1908,  on  filing  a  proper 
affidavit  and  letters,  the  court  held  that  the 
requirement  that  the  registration  must  be  made 
before  the  said  first  day  of  January,  1908,  was 
mandatory;  and  that  the  applicant,  having  failed 
to  register  before  that  date,  was  not  entitled  to 
register  under  that  provision.^-  But  where  the 
application  was  properly  made,  but  it  was  later 
found  that  the  letters  failed  to  show  that  the 
signers  were  stock  raisers,  or  that  the  ai3plicant 
had  practiced  five  years,  upon  a  notification  by 
the  board  it  was  held  that  the  record  might  be 
corrected,  and  the  proof  be  made  comjDlete  in 
January,  1909,  although  after  the  said  first  day 
of  January,  1908.^  ^  Where  the  application  failed 
to  include  proof  of  practice  ''in  their  various 
branches, ' '  and  the  letters  of  recommendation  did 
not  cover  the  entire  period  of  five  years,  nor  indi- 
cate the  kind  of  service  rendered,  the  court  held 
that  the  veterinary  board  had  properly  denied  the 
application.^^ 
It  will  be  noticed  that  in  the  Jennings  case  above 

11  Folsom  V.  State  Veterinary  i3  Jennings  v.  State  Veteri- 
Board,  158  Mich.  277,  122  N.  nary  Board,  156  Mich.  417,  120 
W.  529.  N.  W.  785. 

12  Kerbs  v.  State  Veterinary  i4  Dusaw  v.  State  Veterinary 
Board,  154  Mich.  500,  118  N.  Board,  157  Mich.  246,  121  N. 
W.  4.  W.  759. 


PRACTICE  OF  VETERINARY  SURGERY  51 

mentioned,  the  essential  proof  had  been  recorded, 
but  that  there  appeared  certain  defects  in  which 
the  evidence  was  not  sufficiently  clear  upon  the 
face  of  the  documents.  In  the  Dusaw  case  there 
were  vital  defects  in  many  particulars. 

Records  must  not  be  falsified.  A  county  court 
in  New  York  has  no  jurisdiction  and  no  authority 
to  make  an  order  directing  the  county  clerk  to 
enter  the  name  of  a  physician  in  the  ' '  Register  of 
Physicians  and  Surgeons,"  say  on  July  24,  1908, 
as  of  Dec.  1,  1899,  after  he  had,  on  the  latter  date, 
omitted  to  register  his  diploma  in  the  office  of 
such  clerk,  as  the  law  required.  Any  such  regis- 
tration is  a  nullity,  and  on  proper  application  it 
will  be  vacated  and  cancelled. ^^  The  fact  that 
one  practiced  medicine  for  more  than  ten  years 
without  authority  required  by  statutes,  gives  no 
right  to  practice.^*' 

In  the  absence  of  special  enactments,  it  is  pre- 
sumed that  any  person  holding  himself  out  as  a 
practitioner  of  veterinary  medicine  and  surgery 
is  legally  qualified.  When  there  is  a  statute,  the 
terms  of  the  statute  must  be  met,  unless  the  legis- 
lature shall  have  exceeded  its  authority.  Gener- 
ally the  matter  of  applying  the  law  and  issuiug 
the  license  is  left  to  a  board.  In  its  rules  govern- 
ing the  issuance  of  the  license  the  board  must  not 
go  beyond  the  terms  of  the  statute.  ( §  5.)  Where 
a  medical  board  attempted  to  add  requirements 
beyond  those  in  the  statute,  it  was  held  that  they 

15  7n  re,  Somme,   136   N.  Y.  Commonwealth  v.  Rice  id.;  Har- 

Sup.  57.  gan  v.  Purdy,  93  Ky.  424,  20  S. 

loDriscoU  v.   Commonwealth,  W,  432. 
93    Ky.    393,    20    S.    W.    431; 


52       ESSENTIALS  OF  VETERINARY  LAW 

exceeded  their  authority,  and  the  issuance  of  the 
license  was  secured  by  mandamus.^'^ 

The  issuance  of  the  license  is  a  purely  executive 
duty,  even  when  the  officer  issuing  it  is  vested  with 
discretion.^  ^  If  the  statute  merely  requires  presen- 
tation of  a  diploma  from  a  legally  organized  col- 
lege, the  officer  must  be  satisfied  that  the  diploma 
is  genuine,  that  it  was  issued  from  a  college  which 
was  legally  organized,  and  that  the  holder  is  law- 
fully entitled  to  the  same.  Frauds  have  been  at- 
tempted in  each  of  these  points.  If  in  addition,  the 
statute  adds  the  requirement  that  the  college  shall 
be  of  good  standing,  without  making  it  clear  what 
the  basis  of  judgment  must  be,  it  is  left  to  the  board 
to  determine  this  point,  and  it  is  presumed  that  the 
board  shall  act  with  discretion,  and  not  arbitrarily. 
All  tests  must  be  reasonable  and  impartial;  they 
must  not  violate  the  principle  of  equal  protection, 
nor  create  any  special  privilege.  The  qualification 
required  must  be  obtainable  by  reasonable  eifort.^^ 
There  is  no  ''school"  in  science,  and  the  idea  of  a 
"school"  of  medical  practice  is  essentially  com- 
mercial. The  law  should  be  based  upon  scientific 
knowledge  and  training,  and  as  such  no  special 
method  of  treatment  should  be  favored  or  dis- 
criminated against.^*' 

Owing  to  the  very  great  differences  which  were 
found  in  the  teaching  of  different  schools,  and  as 

17  state  V.  Lutz,  136  Mo.  633.      Health,  22  Ky.  L.  438,  50  L.  E. 

18  People  V.   Apfelbaum,   2.51      A.   386;    State  v.   Gregory,    83 
111.  18.  Mo.  123;   White  v.  Carroll,  42 

10  Dent  V.  West  Virginia,  129      N.  Y.   161 ;  Allopathic  St.  Bd. 

U,  S.  114.  of  Medical  Examiners  v.  Fow- 

20  Nelson    v.     State    Bd.    of      ler,  50  La.  Ann.  1358,  24  S.  809. 


PRACTICE  OF  VETERINARY  SURGERY  53 

to  tlie  strictness  with  which  candidates  for  degrees 
were  tested,  it  has  been  found  advisable  to  require, 
either  with  or  without  a  diploma,  that  all  candi- 
dates for  medical  license  shall  be  examined  by 
officers  of  the  state  issuing  the  license.  The  stat- 
ute should  be  definite  as  to  the  amount  of  educa- 
tion which  the  candidate  should  have  had  aside 
from  his  professional  course,  should  specify 
whether  or  not  a  candidate  not  possessing  a 
diploma  shall  be  admitted  to  license  examination, 
and  it  should  further  state  in  what  branches  he 
should  be  examined.  Though  the  work  of  the 
examining  board  is  a  quasi-judicial  act,  it  is  execu- 
tive in  nature.  It  is  presumed  that  the  examina- 
tion will  be  conducted  in  an  impartial  manner. 
If  it  is  not  so  conducted,  it  is  arbitrary,  and  there- 
fore illegal.^^ 

33.  Appointment  of  Examiners.  It  is  one  of  the 
principles  of  the  American  governmental  system 
that  appointment  to  office  must  be  made  by  the 
same  branch  of  service.  That  is,  since  the  work 
of  issuing  a  practice  license  is  executive  in  nature, 
the  appointment  of  the  examiners  must  be  made 
by  executive  officers,  and  not  by  the  legislative  or 
judicial  officers.^ ^  The  California  medical  prac- 
tice act  grants  the  appointment  of  examiners  to 
the  medical  societies.  So  far  as  we  are  aware  this 
particular  act  has  not  been  tested  judicially  as  to 
this  point.  In  a  somewhat  similar  case  in  Illinois 
it  was  held  that  the  statute  was  unconstitutional 
as  a  delegation  of  authority,  and  as  granting  a 
special  franchise.    ''Such  rights  as  inhere  in  the 

21  Public  Health,  273.  22  Public  Health,  283. 


54        ESSENTIALS  OF  VETERINARY  LAW 

sovereign  power  can  only  be  exercised  by  the  indi- 
vidual or  corporation  by  virtue  of  a  grant  from 
such  sovereign  jDower,  and  when  the  state  grants 
such  a  right  it  is  a  franchise. ' '  ^^  Power  to  ap- 
point to  office  is  an  attribute  of  sovereignty.^"*  The 
legislature  has  no  power  to  appoint  to  office. 
Not  having  the  power  in  its  possession  it  could 
not  give  it  to  a  non-governmental  organization. 
(§§171-172.) 

34.  Exceptions.  Statutes  relative  to  the  license 
of  practitioners  frequently  make  certain  excep- 
tions in  their  operation.  If  these  exceptions  are 
based  upon  reason,  being  neither  arbitrary  nor  a 
mark  of  favoritism,  they  will  not  be  held  illegal 
in  themselves,  nor  will  they  vitiate  the  legality  of 
the  rest  of  the  statute.  So,  where  an  exception  is 
made  in  the  application,  of  those  who  have  been 
practicing  for  a  given  number  of  years  within  the 
state  before  the  jDassage  of  the  statute,  the  law 
has  been  upheld.^  ^  Also,  an  exception  made  with 
reference  to  physicians  practicing  in  another  state, 
in  which  they  reside,  but  called  within  the  state 
enacting  the  statute  for  purposes  of  consultation, 
or  for  the  treatment  of  special  cases,  is  upheld  as 
legal.^^  Such  an  exception  might  very  reason- 
ably exclude  from  its  operation  practitioners  re- 
siding in  counties  contiguous  to  the  state  making 
the  provision.    This  would  seem  especially  advis- 

23  Lasher  v.  People,   183   111.  111.  84;  State  v.  Vandersluis,  42 

226,  233,  citing,  Bd.  of  Trade  v.  Minn.  129. 

People,    91    111.   88;    People   v.  2g  State  v.  Van  Doran,  109  N. 

Holtz,  92  111.  426.  C.    864;     Parks    v.    State,    159 

2*  1  Blackstone  Com.  272.  Ind.  211,  64  N.  E.  862. 

25  Williams    v.     People,     121 


PRACTICE  OF  VETERINARY  SURGERY  55 

able  where  the  adjoining  state  either  has  no  law 
regulating  practice,  or  where  its  regulation  is 
inefficient.  Otherwise,  those  unable  to  get  a 
license,  but  desiring  to  practice  within  the  state 
would  simply  take  up  their  residence  in  the  adjoin- 
ing territory,  and  practice  from  that  point  of  van- 
tage. 

35.  Certificate  in  the  Place  of  License.  In  Ger- 
many any  one  may  practice  medicine,  without  a 
license,  but  he  is  forbidden  to  assume  the  title  of 
"doctor"  or  of  "physician,"  unless  he  shall  have 
passed  an  examination  and  received  a  certificate.^^^ 
A  somewhat  similar  suggestion  has  been  made  in 
this  country  by  the  attorney  of  the  state  board 
in  Wisconsin  relative  to  the  practice  of  medicine 
among  human  beings,  because  of  the  complications 
caused  by  the  drugless  methods  of  treatment.  His 
suggestion  was  that  practice  be  free,  but  that  the 
board  issue  certificates  to  the  effect  that  the  hold- 
ers show  a  certain  degree  of  proficiency  in  the 
science.  Fortunately,  the  character  of  veterinary 
medicine  is  such  as  to  exclude  from  consideration 
the  need  for  such  a  distinction.  Animals  are  not 
likely  to  be  subjected  to  mental  healing. 

36.  License  by  Reciprocity.  Although  vari- 
ously worded,  many  of  the  statutes  regnilating  the 
practice  of  medicine  require  that  the  candidates 
shall  be  personally  examined  by  the  members  of 
the  examining  board.  This  imposes  upon  them  a 
service  to  be  exercised  with  discretion.  It  is  pre- 
sumed that  the  members  of  the  board  have  been 
selected  with  regard  to  their  fitness  to  pass  judg- 

27  Meyer      Verwaltungsrecht, 
79. 


56        ESSENTIALS  OF  VETERINARY  LAW 

ment  upon  the  candidates'  qualifications.  A  duty 
with  discretion  cannot  be  delegated,^^  This  would 
seem  to  prohibit  the  employment  of  readers  to 
mark  the  examination  papers,  for  such  reading 
makes  the  employed  readers  the  real  judges.  Few 
states  have  provisions  in  their  statutes  for  license 
by  reciprocal  agreements  with  other  boards.  In 
the  absence  of  distinct  provisions,  the  legality  of 
reciprocal  licenses  is  open  to  very  grave  question. 
Some  of  the  statutes  provide  for  examinations  in 
writing,  and  that  the  examination  papers  shall 
be  preserved  in  the  office  of  the  board.  It  is  dif- 
ficult to  see  how  such  a  provision  can  be  observed 
in  the  case  where  a  license  is  issued  solely  upon 
the  basis  of  one  previously  issued  in  another  state. 
Where  the  duties  of  an  officer  are  partially  min- 
isterial (such  as  the  writing  of  a  license),  they 
may  be  delegated;  but  where  they  are  judicial,  or 
quasi- judicial  in  nature  (as  in  the  holding  of  an 
examination  for  license),  they  cannot  be  so  dele- 
gated.^^  A  board  of  examiners  in  one  state  can- 
not, therefore,  lawfully  appoint  the  board  in 
another  state  as  its  deputy  to  make  examinations, 
nor  accept  the  finding  of  the  foreign  board  as  its 
own  decision  in  the  case.     (See  §  9.) 

There  is  another  objection  to  such  license  by 
reciprocity.  A  foreign  board  is  not  under  the  jur- 
isdiction of  the  state,  and  in  case  of  malfeasance 
it  could  not  be  punished.  Citizenship  is  one  of 
the  prerequisites  for  the  holding  of  an  office,  and 
the  foreign  board  may  not  therefore  assume  this 
relationship. 

28  Public  Health,  272,  426.      570;    Mechem,   Public    Officers, 
29Throop,      Public     Officers,       567,  568. 


PRACTICE  OF  VETERINARY  SURGERY  57 

It  may  seem  advisable  that  a  provision  for 
license  by  reciprocity  should  be  made,  but  if  de- 
sired it  should  be  made  in  the  statute.  Some  time 
ago  a  graduate  of  an  Italian  university  settled  in 
Buffalo  to  practice  medicine.  He  was  informed 
that  he  must  be  examined  in  English.  He  then 
went  to  Michigan  and  there  secured  a  license, 
which  he  presented  in  New  York  with  a  demand 
for  a  license  by  reciprocity.  This  was  refused, 
and  he  then  sought  by  mandamus  to  compel  the 
issuance  of  the  license.  The  court  refused  to  inter- 
fere, and  held  that  his  efforts  to  avoid  the  New 
l^ork  examination,  and  obtain  license  through 
subterfuge,  justified  the  refusal  of  the  board.^° 
The  West  Virginia  Board  has  a  rule  relative  to 
reciprocity  licenses  that  the  applicant  must  have 
been  practicing  in  the  primary  state  for  at  least 
one  year.  One  Thomas,  holding  a  Maryland  li- 
cense, sought  by  mandamus  to  compel  the  issu- 
ance of  a  reciprocal  license  in  West  Virginia.  The 
court  upheld  the  refusal  of  the  board.^^  It  will 
be  presumed  that  a  man  is  not  a  legal  practitioner 
until  he  proves  to  the  contrary.^^  The  Minnesota 
statute  providing  for  license  by  reciprocity  con- 
tains no  provision  for  an  appeal.  The  right  to 
appeal  is  purely  statutory.  There  is  therefore  no 
appeal  from  the  decision  of  the  board  refusing  to 
issue  a  license  by  reciprocity.^^ 

37.  The  License  Itself.    A  license  gives  only 

30  People  ex  rel.  Pisani  v.  Mc-  32  Miller  v.  State,  105  Miss. 
Kelway,  148  N.  Y.  Sup.  818.  777,  63  So.  269. 

31  Thomas  v.  State  Board  of  ss  Williams  v.  State  Bd.  of 
Health,  72  W.  Va.  776,  79  S.  E.  Med.  Exrs.,  120  Minn.  313,  139 
725.  N.  W.  500. 


58        ESSENTIALS  OF  VETERINARY  LAW 

such  rights  and  privileges  as  its  wording  shows. 
A  license  to  practice  veterinary  medicine  would 
give  no  right  to  prescribe  for  a  human  being. 
Whenever  the  existence  of  a  license  is  lawfully 
questioned,  it  is  not  sufficient  to  prove  its  posses- 
sion by  parol  evidence,  nor  is  it  sufficient  to  pro- 
duce a  certificate  that  one  is  licensed.^ ^  The  license 
may  be  a  forgery,  or  it  may  have  been  canceled,  or 
the  certificate  may  be  wholly  false.  By  the  gen- 
eral rules  of  evidence,  when  the  existence  of  a 
document  is  asserted,  the  document  itself  should 
be  produced.'"^"'  The  same  statements  are  true  as 
to  the  possession  of  a  diploma.  The  diploma  itself 
should  be  produced.  It  may  be  possible  that  the 
lawfully  issued  diploma  might  have  been  de- 
stroyed, and  that  a  duplicate  diploma  could  not 
possibly  be  procured.  It  would,  under  such  condi- 
tions, be  an  injustice  to  the  victim  of  misfortune 
to  enforce  this  rule;  but  the  greatest  caution  is 
needed  in  accepting  proofs  in  such  a  case.  This 
was  illustrated  in  a  case  which  came  under  the 
writer's  personal  obsei-vation.  A  physician 
claimed  to  have  been  graduated  from  an  institu- 
tion which  ceased  to  exist  during  the  Civil  War. 
He  claimed  that  many  years  afterward  his  office 
was  burned  and  that  his  diploma  was  destroyed. 
He  made  affidavit  of  these  facts,  or  asserted  facts. 
Owing  to  the  writer's  official  relation  with  a  medi- 
cal society  the  applicant  was  referred  to  him  for 
recognition.  In  spite  of  recommendations  from 
physicians  and  clergjTuen,  a  cross  examination, 

34  Commonwealth    v.    Spring,  s^  Greenleaf,     Evidence,     79; 

19  Pick.  396.  Wharton,   Criminal   Law,  2434. 


PRACTICE  OF  VETERINARY  SURGERY  59 

with  careful  scrutiny  of  the  evidence  submitted, 
failed  to  substantiate  the  claims.  Though  he  had 
been  definite  as  to  dates  and  names,  known  facts 
contradicted  his  statement.  Shortly  after  that 
the  applicant  removed  to  another  section,  and 
there  was  convicted  of  serious  crimes,  and  pre- 
sumably died  before  the  expiration  of  his  term  in 
prison. 

38.  Revocation  of  License.  The  courts  recog- 
nize the  fact  that  the  right  to  practice  medicine  is 
a  valuable  property  right.^^  However,  the  grant- 
ing of  a  license  does  not  operate  as  a  surrender  of 
police  power  on  the  part  of  the  state.  (§§14,  20.) 
Therefore,  a  license  once  granted  may  be  can- 
celed.^^  Because  the  license,  and  the  right  to  prac- 
tice dependent  thereon,  become  a  property  right, 
and  the  license  is  in  effect  a  contract  with  the 
holder,  the  terms  under  which  it  may  be  revoked 
should  be  clearly  defined  in  the  statutes.  Profes- 
sor Freund  doubts  the  justice  of  such  revoca- 
tions; ^^  but  experience  has  shown  that  such  a 
course  may  be  necessaiy,  and  this  power  of  the 
state  has  been  repeatedly  upheld.  The  Minnesota 
court  held  that  under  the  laws  of  1883  providing 
that  refusal  of  certificates  to  practice  medicine 
might  be  made  by  the  board  ' '  to  individuals  guilty 
of  unprofessional  or  dishonorable  conduct,  and 
it  may  revoke  certificates  for  like  cause,"  the 
power  to  revoke  certificates  is  not  a  judicial  power 
which  cannot  under  the  constitution  be  vested  in 

36  Hewitt  V.  Board  of  Medi-  37  pxjBuc  Health,  428,  212. 

cal  Examiners,  148  Cal.  590,  84  38  Police  Power,  546. 

Pac.  39. 


60        ESSENTIALS  OF  VETERINARY  LAW 

the  board  of  examiners.^^  Publishing  an  adver- 
tisement of  ability  to  cure  is  such  ' '  unprofessional 
and  dishonorable  conduct"  as  to  justify  a  revoca- 
tion.^*' The  power  to  revoke  a  license  for  objec- 
tionable advertising  was  upheld  by  the  Arkansas 
court,  which  held  that  the  right  to  practice  was 
not  a  property  right,  and  that  the  revocation  of 
the  license  was  not  a  judicial  power.^^  In  Mis- 
souri, in  a  somewhat  similar  case,  the  revocation 
was  not  sustained,  the  court  holding  that  the  sta- 
tute provided  for  the  revocation  for  dishonorable 
acts,  not  for  evil  thoughts,  or  an  alleged  willing- 
ness to  commit  abortion;  and  there  was  nothing 
essentially  wrong  in  the  advertisement  itself.^^ 
It  seems  better  to  acknowledge  that  the  right  to 
practice  is  a  property  right,  but  it  is  a  right  which 
is  held  subject  to  the  doctrine  Alienum  tuum  non 
laedat.  (§13.)  In  Arizona  a  license  was  revoked 
for  the  publication  of  misleading  advertisements, 
and  the  court  held  that  such  advertisement  must 
be  generally  considered  as  dishonorable  conduct, 
and  the  revocation  was  sustained.'*^  One  Berry 
advertised  that  he  could  cure  cancers  and  gall 
stones.  This  advertisement  was  considered  false 
and  misleading,  and  therefore  unprofessional.  For 
gall  stones  he  gave  large  doses  of  olive  oil,  and 

39  State  V.  State  Board  of  42  State  ex  rel.  Spriggs  v. 
Med.  Examiners,  34  Minn.  387,  Eobinson,  253  Mo.  271,  161  S. 
26  N.  W.  123.  W.  1169. 

40  State  V.  State  Board  of  ^3  Aiton  v.  Board  of  Medical 
Med.  Exmrs.,  34  Minn.  391,  26  Exrs.,  13  Ariz.  354,  114  Pac. 
N.  W.  125.  962. 

41  State  Med.  Board  v.  Mc- 
Crary,  95  Ark.  511,  130  S.  W. 
544. 


PRACTICE  OF  VETERINARY  SURGERY  61 

the  resulting  lumps  of  soap  which  the  patient 
passed  he  pronounced  to  be  gall  stones.  The  revo- 
cation of  his  license  was  sustained.^^  An  act  for- 
bidding physicians  to  solicit  patients  by  paid 
agents  was  upheld  as  a  valid  use  of  police  power 
in  Arkansas.^^  While  the  Kentucky  statute  pro- 
vides for  the  revocation  of  a  physician's  license 
for  unprofessional  conduct,  the  context  shows 
that  there  must  be  moral  turpitude,  and  an  adver- 
tisement is  not  sufficient  ground  for  revocation  of 
license  unless  it  involves  moral  tuipitude  and 
fraud.*^  The  New  York  statute  provides  for  the 
revocation  of  the  license  of  a  physician  who  had 
been  convicted  of  crime,  and  the  Supreme  Court 
of  the  United  States  upheld  the  revocation  of  one 
Hawker,  who  had  been  convicted  nine  years  be- 
fore.^'^  Since  this  revocation  is  essentially  in  the 
nature  of  criminal  punishment,  it  is  not  sufficient 
that  the  board  believe  that  the  man  is  guilty,  but 
the  evidence  must  show  that  he  is  in  fact  guilty.^ ^ 
The  statute,  in  providing  for  the  revocation  of 
license  to  practice,  should  prescribe,  not  only  for 
what  cause  this  penalty  should  be  inflicted,  but 
also,  how  the  revocation  should  be  made.  It  would 
seem,  in  order  to  comply  with  the  provision 
relative  to  ' '  due  process  of  law, ' '  that  formal  no- 
tice of  the  charges  made  should  be  given  to  the 
holder  of  the  license,  either  by  mail  or  by  personal 

"Berry  v.  State  (Tex.),  135  Chenowith  v.  State  Bd.  of  Med. 

S.  W.  631.  Exrs.,  57  Col.  74,  141  Pae.  132. 

45  Thompson  v.  Von  Lear,  77  ^t  Hawker  v.  New  York,  170 

Ark.  506.  U.  S.  189. 

40  Foreman   v.   State   Bd.   of  48  Board    of    Med.    Exrs.    v. 

Health  (Ky.),  162  S.  W.  796;  Eisen,  123  Pac.  52,  61  Ore.  492. 


62       ESSENTIALS  OF  VETERINARY  LAW 

service,  and  that  a  day  be  fixed  for  a  hearing.  The 
record  of  that  hearing  should  show  the  transac- 
tions with  sufficient  clearness  so  that  in  the  event 
of  a  judicial  investigation  it  would  be  evident  to 
the  court  exactly  what  had  transpired.  The  board, 
or  officer  having  the  power  to  revoke  the  license, 
should  also  have  the  power  to  compel  the  attend- 
ance of  such  witnesses  as  might  be  deemed  neces- 
sary, with  the  power  to  administer  the  oath;  and 
the  defendant  should  have  the  privilege  of  cross 
examination.  Under  such  conditions,  unless  other- 
wise provided  by  statute,  the  executive  determina- 
tion would  be  deemed  final  as  to  questions  of  fact, 
though  the  courts  would  still  have  jurisdiction  as 
to  questions  of  law.'*^ 

Where  the  revocation  depends  upon  a  former 
conviction  in  a  court,  the  notice  to  the  defendant 
may  only  state  that  he  is  summonsed  to  appear  be- 
fore the  board,  or  officer,  and  show  cause  why  his 
license  should  not  be  revoked.  If  then  he  fails 
to  appear  the  license  may  be  at  once  revoked,  the 
record  showing  the  notice  given,  the  fact  of  his 
non-appearance,  and  the  fact  of  re\'ocation.  A 
physician  thus  summonsed  to  appear  before  a 
board  for  a  hearing  prej^aratory  to  the  revocation 
of  his  license  is  not  entitled  to  an  injunction  to  pre- 
vent such  hearing.^'^  The  Arkansas  statute  provid 
ed  for  the  revocation  of  the  license  of  a  physician 
by  a  mayor  upon  conviction  of  any  crime  involving 
moral  turpitude.  Though  the  sale  of  liquor  is  a 
statutory  crime,  it  does  not,  according  to  the  court, 

49Nishimura   Ekiu   v.    U.    S.,       Exrs.,    109   Minu.    360,    123    N. 
142  U.  S.  651.  W.  1074. 

50  Wolf    V.    Board    of    Med. 


PRACTICE  OF  VETERINARY  SURGERY  63 

involve  moral  turpitude.  The  term  ' '  moral  turpi- 
tude" refers  to  something  immoral  in  itself,  re- 
gardless of  the  fact  that  the  act  may  be  punish- 
able by  the  terais  of  the  statute.  The  revocation 
was  not  sustained.®^ 

39.  Attorney  for  Board  of  Examiners.  In  prose- 
cutions for  violation  of  the  medical  practice  acts 
it  is  frequently  necessary  to  have  the  services  of 
an  attorney,  as  well  as  for  legal  advice  which  the 
board  may  from  time  to  time  desire.  Medical 
license  boards  are  state  officers,  and  it  is  the  duty 
of  the  Attorney  General  of  the  state  to  render  this 
service,  either  by  his  own  service,  or  that  of  his 
office  assistants  detailed  for  such  special  work, 
or  through  the  ordinary  prosecuting  attorneys  of 
the  various  counties,  by  whatever  name  they  may 
be  called.  Unless  the  law  specifically  provides  for 
the  employment  of  an  attorney  for  the  consulta- 
tion of  a  board,  or  for  the  prosecution  of  violators 
of  acts  requiring  licenses,  the  board  has  no  author- 
ity for  such  employment ;  neither  is  there  authority 
for  the  payment  for  such  ser^dce.  By  general 
statutes  these  duties  devolve  upon  the  office  of  the 
Attorney  General  and  the  ordinary  state's  attor- 
neys, or  prosecuting  authorities.^-  By  the  consti- 
tutions of  many  states  it  is  provided  that  there 
shall  be  no  subject  treated  in  an  act  which  is  not 
indicated  in  the  title;  and  it  is  also  provided  that 
appropriation  acts  shall  contain  no  other  legis- 
lation.    Under  such  conditions,  even  where  the 

51  Fort  V.  City  of  Brinkley,  Pac.  630;  Eeports,  Attorney 
87  Ark.  400,  112  S.  W.  1084.  General,   Illinois    (1902),    391; 

52  State  ex  rel.  Board  of  :\lefl.  (1910),  305. 
Exrs.  V.  Clausen    (Wash.),  146 


64       ESSENTIALS  OF  VETERINARY  LAW 

appropriation  act  makes  provision  for  the  pay  of 
such  a  special  attorney,  it  would  seem  that  such 
employment  would  be  unconstitutional  in  the  ab- 
sence of  special  legislation  in  addition  to  the  ap- 
propriation. Moreover,  such  special  employment 
seems  unadvisable,  because  it  tends  to  conflict  with 
the  regular  authority  of  the  office  of  the  Attorney 
General. 

40.  What  Constitutes  Practice  of  Veterinary 
Medicine  or  Surgery?  The  act  regulating  the 
practice  of  the  veterinary  profession  should  define, 
with  considerable  preciseness,  what  shall  be 
deemed  practicing  that  profession.  First  it  should 
make  the  use  of  the  designation  ''Veterinarian," 
or  ''Veterinary  Surgeon,"  or  "Doctor  of  Veter- 
inary Medicine,"  or  "Doctor  of  Veterinary  Sur- 
gery, "  or  of  such  initial  letters  as  "  V.  S. "  or  "  D. 
V.  M. "  or  "  D.  V.  S. "  on  signs,  door  plates,  or  in 
advertisements,  as  presumptive  evidence  of  such 
practice.  The  actual  treatment  of  injuries  or 
diseases  in  animals  not  belonging  to  the  human 
family,  whether  by  drugs,  manipulations,  applica- 
tions, or  by  the  use  of  surgical  instruments  should 
be  deemed  practice  of  veterinary  medicine  or  sur- 
gery, whenever  done  for  pay,  or  upon  the  animals 
belonging  to  another,  unless  in  an  emergency  and 
gratuitously.  Holding  one's  self  out  to  practice, 
either  by  advertisements,  signs,  cards,  by  personal 
solicitation,  or  otherwise,  should  be  sufficient  evi- 
dence to  convict  of  violation  of  the  statute ;  but  in 
every  case  the  terms  of  the  statute  must  govern  its 
application. 

The  responsibilities  of  the  practice  are  very 
great.    A  single  incompetent,  or  careless,  or  un- 


PRACTICE  OF  VETERINARY  SURGERY  65 

principled  practitioner  may  easily  do  the  entire 
nation  millions  of  dollars  worth  of  injury.  A 
veterinarian,  buying  cheap  serum  for  the  treat- 
ment of  hog  cholera,  may  spread  the  foot-and- 
mouth  disease,  with  its  resulting  paralyzing  in- 
fluence even  upon  the  dairy  interests.  It  is  the 
incompetent  man  who  least  realizes  the  dangers, 
and  he  fails  also  to  realize  that  cheap  products 
generally  indicate  inefficient  care  in  production. 
It  is  the  incompetent  man  who  is  not  prepared  to 
recognize  a  dangerous  disease  which  may  be  new 
in  the  district.  It  is  therefore  a  prime  necessity, 
under  the  present  state  of  advancement  in  scien- 
tific knowledge  of  animal  diseases,  for  the  safe- 
guarding of  the  great  animal  industry  of  the 
United  States  that  strict  laws  be  enacted,  and  en- 
forced, regulating  the  practice  of  the  veterinary 
profession. 

Such  serious  results  of  incompetence  of  practi- 
tioners of  veterinary  medicine  as  the  death  of  a 
number  of  mules  from  tetanus  received  when  they 
were  inoculated  with  anti-anthrax  serum,  or  out- 
breaks of  foot-and-mouth  disease  in  hogs  received 
in  anti-hog-cholera  serum,  tend  to  prevent  the  use 
of  these  great  aids  in  the  restriction  of  disease. 
They  also  cast  a  reflection  upon  the  character  of 
the  profession.  On  the  other  hand,  a  stringent  law 
regulating  the  practice  tends  to  elevate  the  stand- 
ard of  the  profession,  and  to  attract  men  of  the 
highest  scientific  attainments.  Such  men  are 
needed  in  the  profession  by  the  animal  industries, 
but  they  are  loath  to  enter  competition,  and  be 
classed  generally  on  the  same  level,  with  men  who 
are  deficient  in  ordinary  education,  and  whose 


66        ESSENTIALS  OF  VETERINARY  LAW 

general  scientific  knowledge  is  practically  nothing. 

Essentially  the  practice  of  the  veterinarian  is 
in  no  wise  inferior  to  that  of  the  practitioner 
among  human  beings.  It  requires  even  a  wider 
scientific  knowledge,  for  it  deals  with  many  kinds 
of  animals,  each  differing  from  the  others  far  more 
than  the  difference  between  human  beings.  The 
veterinarian  also  deals  with  them  in  a  greater 
variety  of  ways,  for  he  must  keep  constantly  in 
mind  the  many  possible  uses  of  the  animals  with 
which  he  deals.  His  problems  of  disease  restric- 
tion are  greater.  Today  the  body  of  competent 
veterinarians  is  small  in  the  United  States.  Para- 
doxical as  it  may  seem,  restrictions  upon  the  prac- 
tice will  tend  to  increase  this  small  nucleus,  by 
eliminating  the  degrading  elements. 

While  the  question  as  to  what  shall  be  consid- 
ered illegal  practice  of  veterinary  medicine  and 
surgery  will  depend  upon  the  wording  of  the 
special  statutes  of  the  individual  states,  and  in 
this  country  there  may  have  been  no  judicial 
determination  of  that  point,  there  have  been  some 
decisions  in  England  which  will  sen^e  as  prece- 
dents for  American  cases.  A  farrier  who  is  not 
registered  as  a  veterinaiy  surgeon,  nor  certified 
by  the  Highland  and  Agricultural  Society  of  Scot- 
land, violates  the  law  by  using  the  sign  ''Veter- 
inaiy Forge"  on  his  premises,  or  on  his  bill- 
heads.^^ Also  one  who  was  not  on  the  register  of 
Veterinary  Surgeons,  nor  a  holder  of  the  certifi- 
cate of  the  H.  and  A.  S.  of  Scotland,  put  out  a  sign 
''Canine  Specialist.     Dogs  and  Cats  treated  for 

osEoyal    College    of    Veteri-       L.   J.   C.   146    (1892),   1    Q.  B. 
nary  Surgeons  v.  Robinson,  61       557. 


PRACTICE  OF  VETERINARY  SURGERY  67 

all  diseases."  The  court  held  that  by  so  doing  he 
claimed  that  he  was  ''specially  qualified  to  prac- 
tice veterinary  surgeiy  within  the  meaning  of  the 
law. "  ^^  A  chemist  published  a  book  upon  animal 
diseases,  and  advised  under  certain  conditions  the 
calling  of  a  veterinary  surgeon.  In  this  book  he 
spoke  of  himself  as  a  ''pharmaceutical  and  veter- 
inary chemist."  It  was  held  that  in  so  doing  he 
was  leading  people  to  suppose  that  he  was  legally 
qualified  to  practice  veterinary  medicine  within 
the  meaning  of  the  law.^" 

41.  Practice  as  a  Company.  A  sign  was  placed 
upon  a  building,  and  advertisements  were  pub- 
lished, bearing  the  words  "Churchill's  Veterinary 
Sanatorium  (Ltd.),  Dogs  and  Cats  boarded.  James 
Churchill,  M.  D.  (U.  S.  A.)  Specialist,  Managing 
Director."  Churchill  was  not  registered  as  a 
veterinary  surgeon,  nor  certified  by  the  H.  and 
A.  S.  of  Scotland.  Under  the  criminal  code  there 
was  no  provision  for  the  punishment  of  an  incor- 
porated limited  company.  Therefore,  the  court 
issued  an  injunction  against  the  company,  and 
against  Churchill  personally,  to  restrain  the  con- 
tinuing to  make  this  false  representation.-"^^  In 
a  somewhat  similar  case  in  New  York,  a  licensed 
physician  was  employed  by  a  drug  company  which 
advertised  free  examination  and  free  treatment 
by  competent  physicians  for  those  using  its  medi- 
cines.    It  was  shown  that  he  did  make  certain 

54  Eoyal  Col.  of  Vet.  Surg.  v.  oe  Atty.  General  v.  Churchill 's 
Collinson,  77  L.  J.  K.  B.  G89  Veterinary  Sanatorium,  Ltd.,  79 
(1908),  2  K.  B.  248.               .  L.   J.,    Ch.    741,    (1910)    2    Ch. 

55  Royal  Col.  of  V.  S.  v.  401 ;  Atty.  Gen.  v.  Myddletons, 
Groves,   57   J.   P.   505.  Ltd.   (1907),  1  J.  R.  471. 


68        ESSENTIALS  OF  VETERINARY  LAW 

examinations  for  one  holding  the  card  of  the  com- 
pany, and  that  he  refused  to  accept  payment  there- 
for. The  court  sustained  his  conviction  of  illegally 
practicing  medicine,  in  that  he  was  practicing 
under  the  trade  name  of  The  Standard  Pharmacy 
Co.^^ 

42.  Prosecutions,  by  Whom?  In  this  country, 
as  in  England,  it  is  customary  that  prosecutions 
for  violation  of  practice  laws  be  made  by,  or  in  the 
name  of,  the  state  licensing  board;  but  from  the 
nature  of  the  case  the  complaints  must  come  from 
those  who  are  cognizant  of  the  facts,  and  prose- 
cutions may  be  started  by  any  citizen.  The  proper 
method  generally  is  for  the  person  having  the 
needed  infonnation  to  send  the  facts  to  the  state 
board  having  supervision  of  the  matter. 

57  People  ex  rel.  Lederman  v. 
Warden  of  City  Prison,  152  N. 
Y.  Sup.  977. 


CHAPTER  IV. 

LIABILITIES. 

§  45.  The  Contract  of  a  Veter-  §  53.  Survival  of  Action. 

inarian.  §  54.  Cases  of  Malpractice. 

§  46.  Obligation  to  Attend.  §  55.  Liability  for  Accidents. 

§  47.  Number  of  Calls.  §  56.  Special  Liability. 

§  48.  Gratuitous  Service.  §  57.  Burden  of  Proof. 

§  49.  Ordinary  Liability.  §  58.  Defenses. 

§  50.  Errors  of  Judgment.  §  59.  Liability  for  Operation. 

§  51.  Liabilities  for  the  Acts  of  §  60.  Liability     Under     Enact- 

Others.  ments. 

§  52.  Liability   of    Partnership. 

45.  The  Contract  of  a  Veterinarian.  In  assum- 
ing the  practice  of  a  profession  it  must  be  remem- 
bered that  with  the  privileges  one  also  takes  upon 
himself  certain  duties  and  liabilities.  When  a 
veterinarian  answers  a  call  and  goes  to  see  a  sick 
horse  or  cow  he  thereby  enters  into  an  assumed 
contract  with  the  owner  of  the  stock.  On  his  part 
the  veterinarian  warrants : 

That  he  is  legally  qualified  to  practice  his  pro- 
fession. 

That  his  educational  training  and  experience 
enable  him  to  treat  the  case  in  accord  with  the 
known  facts  of  the  science. 

That  he  will  continue  in  his  care  of  the  case,  and 
render  such  service  as  may  be  needed  until  the 
case  shall  be  terminated,  either  by  the  death  or 
recovery  of  the  patient,  or  by  the  proper  severing 
of  the  relationship  existing  between  the  veterinar- 
ian and  the  owner. 

69 


70        ESSENTIALS  OF  VETERINAEY  LAW 

That  he  will  use  approved  methods  of  practice. 

That  he  will  use  due  care  and  diligence. 

Unless  especially  provided,  the  veterinarian  will 
not  be  deemed  to  have  guaranteed  a  cure.    (§  70.) 

On  his  part,  the  owner  of  the  stock  agrees: 

That  he  will  follow  all  reasonable  directions  of 
the  veterinarian,  and  render  such  assistance  as 
may  be  possible;  and 

That  he  will  pay  the  veterinarian  such  reason- 
able fee  as  would  be  approved  considering  the 
services  rendered  and  the  customs  of  the  com- 
munity. 

46.  Oblig-ation  to  Attend.  Unless  the  veterinar- 
ian holds  an  official  position,  or  his  call  to  render 
professional  service  depends  upon  some  previous 
contract  or  agreement,  he  is  under  no  obligation 
to  respond.^  The  cases  cited  refer  to  medical 
practice  among  human  beings,  but  this  makes  the 
law  all  the  more  clear,  for  the  plea  of  human  life  is 
stronger  than  that  relative  to  the  life  of  the  lower 
animals.  In  the  case  of  Hurley  v.  Eddingfield,^ 
it  was  claimed  that  the  physician  called  declined 
to  come,  and  that  no  other  physician  could  be 
obtained,  and  that  in  consequence  of  the  refusal 
of  the  physician  the  patient  died.  The  court  said : 
''In  obtaining  the  state  license  to  practice  medi 
cine,  the  state  does  not  require,  and  the  license 
does  not  engage,  that  he  will  practice  at  all  or 
on  other  terms  than  he  may  choose  to  accept." 

47.  Number  of  Calls.     Having  responded  to  the 

1  Wharton,   Negligence.    731 ;  Sup.    881 ;    Hurley    v.    Edding- 

Becker  v.  Janiski,  15  N.Y.  Sup.  field,    156   Ind.   416,    59   N.    E. 

675,  27  Abb.  N.  C.  45;   Harris  1058,  53  L.  R.  A.  135. 

V.  Woman 's  Hospital,  14  N.  Y.  2  155  Ind.  416,  etc. 


LIABILITIES  71 

call  it  is  presumed  that  the  physician  has  agreed 
to  render  such  service  as  may  be  needed  in  a  rea- 
sonable care  of  the  case.  Unless  there  is  an  agree- 
ment to  the  contrary,  it  depends  then  upon  the 
practitioner  to  determine  when,  how  often,  and 
how  long  continued,  he  shall  call  upon  the  patient.^ 
In  determining  whether  a  patient  has  sufficiently 
recovered  to  require  no  further  medical  or  surgical 
attention,  a  physician  is  required  to  exercise  rea- 
sonable and  ordinary  care  and  skill,  and  to  have 
regard  to,  and  take  into  account,  the  well  settled 
rules  and  principles  of  medical  and  surgical  sci- 
ence.* It  is  not,  however,  to  be  presumed  that 
having  assumed  the  care  of  a  case  either  that  the 
practitioner  cannot  surrender  it,  or  that  the  re- 
sponsible party  may  not  discharge  the  medical 
man;  however,  in  either  case  it  is  presumed  that 
due  and  timely  notice  will  be  given.^  If  a  physi- 
cian, or  a  veterinarian,  desires  to  discharge  him- 
self from  a  case  in  which  he  is  serving,  his  notice 
should  be  given  in  sufficient  time  so  that  the  serv- 
ices of  another  may  be  secured.  Reasonable  notice, 
then,  would  be  very  different  according  to  cir- 
cumstances. "A  physician  who  undertakes  the 
treatment  of  a  patient  is  bound  to  exercise  not 
only  the  skill  required,  but  also  care  and  attention 
in  attending  his  patient  until  he  notifies  the  patient 
that  his  professional  relations  are  terminated. 
*     *     *     And  when  a  physician  is  employed  to 

3  Barbour  v.  Martin,  62  Me.  E.  A.   627,  38   Am.   St.  E.   17. 

536 ;     Becker     v.     Janiski,     27  *  Mucci  v.  Houghton,  89  Iowa 

Abb.  N.  C.  45,  15  N.  Y.  Sup.  608,  57  N.  W.  305. 

675;  Ebner  v.  Mackey,  186  111.  s  Lathrope  v.  Flood,  63  Pac. 

297 ;  Lawson  v.  Conaway,  37  1007,  135  Cal.  458,  67  Pac.  683. 
W.  Va.  159,  16  S.  E.  564,  18  L. 


72        ESSENTIALS  OF  VETERINARY  LAW 

attend  upon  a  sick  patient  his  employment  con- 
tinues, while  the  sickness  lasts,  and  the  relation 
of  physician  and  patient  continues,  unless  it  is 
put  an  end  to  by  the  assent  of  the  parties,  or  is 
revoked  by  the  express  dismissal  of  the  physi- 
cian. "  ^ 

While  the  general  rules  would  be  the  same  for 
human  practitioners  and  for  veterinarians,  this 
rule  of  continuance  of  service  should  not  be  so  rig- 
idly applied  in  the  case  of  the  veterinarian, 
especially  where  the  number  of  competent  veter- 
inarians is  relatively  small.  Human  life  has  a 
theoretical  value  far  above  that  of  animals.  How- 
ever, in  a  New  York  case  this  doctrine  was  applied 
in  veterinary  practice.  It  was  an  action  by  the 
veterinarian  to  recover  for  his  services  in  attend- 
ing a  horse.  The  testimony  showed  that  at  the 
time  of  the  plaintiff's  last  visit  the  horse  was 
very  ill,  and  plaintiff  promised  to  call  again  early 
the  next  morning.  He  did  not  return,  and  the 
horse  died.  The  court  held  that  evidence  sus- 
tained the  claim  of  negligence."^ 

48.  Gratuitous  Service.  "Whether  the  patient 
be  a  pauper  or  a  millionaire,  whether  he  be  treated 
gratuitously  or  for  reward,  the  physician  owes  him 
precisely  the  same  duty  and  the  same  degree  of 
skill  and  care.  He  may  decline  to  respond  to  the 
call  of  a  patient  unable  to  compensate  him;  but 
if  he  undertakes  the  treatment  of  such  a  patient 
he  cannot  defeat  a  suit  for  malpractice,  nor  miti- 
gate a  recovery  against  him,  upon  the  principle 

«  Gerken  v.   Plimpton,  70   N.  '  Boom  v.  Beed,  69  Hun.  426, 

Y.  Sup.  793 ;   Potter  v.   Virgil,       23  N.  Y.  Sup.  421. 
67  Barb.  578. 


LIABILITIES  73 

that  the  skill  and  care  required  of  a  physician  are 
proportionate  to  his  expectation  of  pecuniary 
recompense.  Such  a  rule  would  be  of  the  most 
mischievous  consequence;  would  make  the  health 
and  life  of  the  indigent  the  sport  of  reckless  experi- 
ment and  cruel  indifference. "  ^  In  one  case  it  was 
held  that  where  services  are  rendered  gratuitously 
physicians  are  liable  only  for  gross  negligence.*^ 
These  two  cases  should  be  read  together,  for 
clearly  both  of  them  are  just.  The  poor  man 
should  not  be  subject  to  wanton  experimentation; 
on  the  other  hand  a  physician  giving  gratuitous 
service  should  have  more  of  the  benefit  of  the 
doubt  where  there  is  a  question  as  to  his  negli- 
gence. 

Similar  rules  apply  in  veterinary  practice.  A 
competent  veterinarian,  trying  to  aid  a  poor  neigh- 
bor by  giving  him  professional  service,  should  not 
be  held  so  strictly  to  account  for  failure  to  keep 
watch  of  the  case,  as  where  he  has  been  definitely 
employed.  In  other  words,  the  fact  that  he  has 
given  one  call  should  not,  in  the  absence  of  clear 
evidence  to  the  contrary,  presume  to  be  the  as- 
sumption of  a  contract  in  which  he  agrees  to  con- 
tinue to  give  his  service  without  compensation. 
The  contract  presupposes  two  sides,  and  such  a 
contract  would  have  only  one  side.  On  the  other 
hand,  simply  because  he  is  giving  his  service  does 
not  entitle  the  veterinarian  to  experiment  at  the 
expense  of  his  poor  neighbor,  and  if  there  has 
been  any  gross  negligence,  or  a  clear  departure 

8  Becker  v.  Janinski,  15  N.  Y.  385.  Shearman  &  Kedfield, 
Sup.  675,  27  Abb.  N.  C.  45.  Negligence,  432. 

sRitchey     v.     West.     23     111. 


74        ESSENTIALS  OF  VETERINARY  LAW 

from  ordinary  practice,  he  should  be  held  liable 
for  harm  resulting.  In  an  Iowa  case  a  veterinary 
student  attempted  to  operate  upon  the  shoulder  of 
a  horse.  He  was  sued  for  malpractice,  and  was 
at  first  held  liable  for  the  damage  inflicted,  al- 
though it  was  shown  that  he  had  not  expected  to 
receive  pay  for  his  services;  but  on  a  rehearing 
the  decision  was  reversed,  because  it  was  proven 
that  his  services  were  rendered,  under  protest,  at 
the  earnest  request  of  the  owner  of  the  colt.  It 
was  shown  by  the  testimony  offered  that  the  stu- 
dent had  called  attention  to  his  incompetence,  be- 
ing still  an  undergraduate.^^ 

The  general  rule  of  law  is  thus  stated  by  Mr. 
Cooley:  ^^  "When  friends  and  acquaintances  are 
accustomed  to  give,  and  do  give,  to  each  other 
voluntary  services  without  expectation  of  reward, 
either  because  other  assistance  cannot  be  procured, 
or  because  the  means  of  parties  needing  the  help 
will  not  enable  them  to  engage  such  as  may  be 
within  reach,  the  law  will  not  imply  an  undertak- 
ing for  skill,  even  when  the  services  are  such  as 
professional  men  alone  are  usually  expected  to 
render.  *  *  *  But  when  one  holds  himself 
out  to  the  public  as  one  having  professional  skill, 
and  offers  his  services  to  those  who  accept  them 
on  that  supposition,  he  is  responsible  for  want  of 
the  skill  he  pretends  to,  even  when  his  services  are 
rendered  gratuitously. ' ' 

In  1856  in  a  suit  for  malpractice  against  a  veter- 
inarian in  Indiana  the  jury  were  instructed  in  the 

10  Morrison  v.  Altig,   134   N.  n  On   Torts,  p.   779, 

W.  529,  reversed  on  rehearing, 
157  Iowa  265,  138  N.  W.  510. 


LIABILITIES  75 

trial  court  that  if  the  defendant  pretended  to  no 
skill  as  a  farrier,  or  was  not  known  as  such,  but  as 
a  matter  of  friendship,  or  otherwise,  recommended 
the  making  of  the  puncture  in  question,  and  it  was 
assented  to  by  plaintiff,  and  made  accordingly, 
defendant  was  not  liable,  though  the  horse  died 
in  consequence  thereof.  But  on  appeal,  the 
supreme  court  found  this  instruction  erroneous, 
and  held  that  the  defendant  was  a  mandatory,  and 
was  responsible  as  such  for  gross  ignorance  or 
gross  negligence;  also  that  the  diligence  required 
is  proportional  to  the  value  of  the  property  bailed, 
or  to  the  delicacy  of  the  operation  to  be  per- 
formed.^^ 

The  foregoing  cases  should  make  incompetent 
persons  more  cautions  in  assuming  such  responsi- 
bilities. It  is  unfortunately  true,  however,  that 
it  is  just  such  persons  who  are  ignorant  even  of 
the  risks  which  they  assume. 

49.  Ordinary  Liability.  ''A  veterinary  sur- 
geon, in  the  absence  of  a  special  contract,  engages 
to  use  such  a  reasonable  skill,  diligence,  and  atten- 
tion as  may  be  ordinarily  expected  of  persons  in 
that  profession.  He  does  not  undertake  to  use 
the  highest  degree  of  skill,  nor  an  extraordinaiy 
amount  of  diligence. "  ^^  He  must  follow  usual 
methods.^^  He  would  not  be  held  liable  for  fail- 
ure, unless  it  were  due  to  default  in  duty.^^    The 

12  Conner  v.  Winton,  8  Ind.  is  Patten  v.  Wiggin,  51  Me. 
315.  65  Am.  St.  Dee.  761.  594;   O'Hara  v.  Wells,  14  Neb. 

13  Barney  v.  Pinkham,  29  403,  15  N.  W.  722;  Bronson  v. 
Xeb.  350,  45  X.  W.  694,  26  Am.  Hoffman,  7  Hun.  674;  Boldt  v. 
St.  E.  389.  Murray,  2  N.  Y.  232;  Craig  v, 

1*  Patten  v.  Wiggin,  51  Me.  Chambers,  17  Ohio  253;  Wil- 
594,  81  Am.  Dec.  593;  Carpen-  liams  v.  Poppleton,  3  Ore.  139. 
ter  V.  Blake,  60  Barb.  488. 


76        ESSENTIALS  OF  VETERINARY  LAW 

standard  of  skill  must  be  judged  according  to  the 
locality  and  time.^*^  It  is  very  evident  that  prac- 
tice which  would  have  been  approved  thirty  years 
ago  would  often  be  held  gross  negligence  in  the 
present  condition  of  the  science.  There  was  a 
time  when  the  use  of  olive  oil  in  large  doses  was 
considered  by  very  many  practitioners  as  proper 
for  the  treatment  of  gall  stones  in  human  beings; 
and  good  men  were  misled  into  thinking  that  the 
resulting  lumps  of  soap  which  were  passed  by  the 
patients  were  really  softened  gall  stones;  yet,  as 
we  have  seen  (§38)  this  claim  was  the  basis  for 
the  revocation  of  a  physician's  license  in  Texas.^" 
50.  Errors  of  Judgment.  It  is  a  general  rule 
that  a  practitioner  is  not  liable  for  a  simple  error 
of  judgment. ^^  But  an  error  of  judgment  must  not 
be  based  upon  ignorance.  It  is  to  be  presumed 
that  the  judgment  has  been  formed  based  upon  a 
knowledge  of  the  sciences  involved,  and  ignorance 
is  not  ' '  error  of  judgment. ' '  ^^  This  rule  applies 
to  those  who  attempt  to  practice  without  possess- 
ing the  ordinary  qualification  of  the  profession. 
So  a  druggist  was  held  liable  for  malpractice  in 

16  Smothers  v.  Hanks,  34  la.  is  Tefft  v.  Wilcox,  6  Kas.  46; 
286,  11  Am.  Kep.  141;  Almond  Wells  v.  World's  Dispensary 
V.  Nugent,  34  la.  300,  11  Am.  Med.  Assn.,  9  N.  Y.  452;  Heath 
R.  147;  Peek  v.  Hutchinson,  88  v.  Glisan,  3  Ore.  64;  Graham  v. 
la.  320,  55  N.  W.  511;  Gramm  Gautier,  21  Tex.  Ill;  Gore  v. 
V.  Boener,  56  Ind.  497;  White-  Brockman,  138  Mo.  App.  231, 
sell  V.  Hill,  66  N.W.  894;  Small  119  S.  W.  1082;  West  v.  Mar- 
V.  Howard,  128  Mass.  131;  tin,  31  Mo.  375;  DuBoise  v. 
Hathorn   v.   Richmond,    48   Vt.  Decker,  130  N.  Y.  325. 

557.  19  Courtney      v.      Henderson 

17  Berry  v.  State  (Tex.),  135  (Marine  Court,  New  York).  Mc- 
S.  W,  631.  Clclland,  Civil  Malpractice,  273. 


LIABILITIES  77 

attempting  to  treat  an  injured  finger.^"^  The  same 
rule  would  apply  here  as  in  other  cases  of  negli- 
gence. Thus  in  Cleveland  v.  Spier  -^  the  defend- 
ants were  held  liable  for  an  injury  to  an  eye,  while 
drilling  into  a  gas  main,  because  they  did  not  use 
the  improved  methods  of  drilling  or  screening, 
which  would  have  avoided  the  accident.  If  the 
practitioner  called  does  not  possess  the  required 
knowledge  or  skill,  it  is  then  his  duty  to  call  com- 
petent assistance,  or  resign  the  case.-^  ''An  error 
in  judgment,  of  a  man  skilled  in  a  particular  call- 
ing, is  not  malpractice,  unless  it  is  a  gross  error. 
But  error  in  judgment  in  a  science,  of  a  man  un- 
skilled in  that  science  (if  such  a  thing  can  be), 
is  malpractice.  In  other  words,  a  person  attempt- 
ing to  practice,  in  physic  or  surgery,  without  first 
having  obtained  a  knowledge  of  such  science,  is 
liable  for  all  the  damage  that  is  the  result  of  his 
practice."-^ 

The  science  of  medicine  has  made  tremendous 
advances  within  the  past  few  years.  New  and 
powerful  aids  for  combating  disease  have  been 
furnished  in  the  various  sera,  and  antitoxins,  and 
bacterins.  But  with  these  new  remedial  agents 
come  new  responsibilities.  The  man  who  uses 
them  recklessly  or  carelessly  is  an  enemy  to  the 
interests  which  he  serves,  and  to  the  profession 
to  which  he  claims  to  belong.  If  in  administer- 
ing an  anthrax  preventive  he  uses  a  bowl  kept 

20  Nelson  v.  Harrington,  72  Mich.  90  N.  W.  278;  Burnham 
"Wis.  591.  V.  Jackson,  1  Colo.  App.  237. 

21  16  C.  B.  (N.  S.)  399,  cited  23  Courtney  v.  Henderson, 
by  McClelland,  Civil  Malprac-  McClelland.  Civil  Malpractice, 
tice,  508.  273. 

22  Pepke    V.    Grace    Hospital. 


78        ESSENTIALS  OF  VETERINARY  LAW 

in  the  stable,  and  nnsterilized,  he  deserves  severe 
punishment  if  tetanus  develops  generally  among 
his  patients.  Thirty  years  ago  this  would  not  have 
been  considered  as  necessarily  carelessness.  To- 
day it  is  criminal  negligence.  He  should  know 
what  he  is  doing. 

This  new  method  imj^oses  another  duty  upon 
the  physician,  whether  he  treat  human  or  four- 
legged  animals.  He  must  use  due  care  in  the  selec- 
tion of  his  bacterial  remedies.  He  should  assure 
himself  that  the  manufacturers  whom  he  pat- 
ronizes use  proper  care.  It  is  true  that  all  these 
substances  are  manufactured  in  this  country  under 
governmental  supervision,  when  they  are  to  enter 
into  interstate  commerce.  It  is,  however,  impos- 
sible for  the  government  to  warrant  their  purity. 
A  firm  may  get  a  license,  and  may  still  show  care- 
lessness in  their  product.  This  has  been  demon- 
strated several  times  within  a  few  years.  It  there- 
fore becomes  necessary  that  the  veterinarian  who 
uses  an  anti-hog-cholera  serum,  for  example, 
should  assure  himself  that  the  firm  manufactur- 
ing the  serum  is  careful  and  in  every  way  reliable. 
Cheap  goods  generally  mean  a  lack  of  care,  but 
high  price  alone  is  not  the  only  guaranty  neces- 
sary. A  fimi  which  has  once  put  out  impure  goods 
should  ahvays  be  regarded  with  suspicion,  unless 
it  has  been  definitely  and  clearly  demonstrated 
that  it  was  the  result  of  an  accident  w^hich  could 
not  have  been  foreseen.    See  §§  157-159. 

51.  Liabilities  for  the  Acts  of  Others.  '■  ^  A  phy- 
sician is  not  responsible  for  the  acts  of  nurses  and 
interns  in  a  hospital  in  dressing  the  wound  of  the 
patient  there  operated  on  by  the  physician,  where 


LIABILITIES  79 

they  are  not  his  employees  unless  he  is  negligent 
in  permitting  them  to  do  so. ' '  ^^  This  is  a  general 
rule,  applicable  in  public  hospitals,  or  in  private 
hospitals  which  are  not  under  the  control  of  the 
physician  or  surgeon  in  the  case,^^  but,  since  vet- 
erinary hospitals  are  seldom  if  at  all  public  in 
ownership  and  control,  this  rule  has  less  appli- 
cation in  veterinary  practice  in  hospitals.  It  does 
apply  in  private  practice.  It  is  the  duty  of  a  phy- 
sician to  give  proper  instruction  for  the  care  and 
nursing  of  his  patient,  but  it  is  not  his  duty  to  do 
the  nursing.-^  It  then  becomes  the  duty  of  the 
owner  of  the  animals  under  treatment  to  furnish 
the  needed  care  and  attendance,  and  negligence  on 
the  part  of  such  attendants  could  not  be  properly 
charged  to  the  attending  veterinarian. 

When,  however,  the  negligence  of  the  attendant 
is  the  result  of  the  neglect  of  the  attending  physi- 
cian to  give  proper  instructions,  even  though  the 
attendant  may  have  been  hired  by  the  patient,  or, 
in  the  case  of  animals,  by  the  owner,  the  physician 
or  veterinarian  may  properly  be  held  for  the  negli- 
gence. It  is  the  duty  of  the  physician  to  give 
proper  directions  for  the  care  of  his  patient.^'^ 

Where  the  physician  or  veterinarian  is  re- 
sponsible for  the  hire  and  control  of  assistants, 
under  the  rule  of  respondeat  superior  he  would 
be  liable  for  their  acts  of  nonfeasance,  malfeas- 
ance, or  misfeasance,  in  so  far  as  injury  might 

24  Reynolds  v.  Smith,  127  N.  27  Carpenter  v.  Blake,  60 
W.  192,  148  Iowa  264.  Barb.  488;    Pike  v.  Honsinger, 

25  Perionowsky  v.  Freeman,  4  155  N.  Y.  201;  Beck  v.  German 
Foster  &  Finlason,  977.  Klinik,  78  Iowa  696. 

20  Graham     v.      Gautier,      21 
Tex.  111. 


80        ESSENTIALS  OF  VETERINARY  LAW 

result  therefrom.  In  other  words,  when  an  animal 
is  taken  to  a  veterinary  hospital  for  treatment  the 
management  of  the  institution  will  be  held  re- 
sponsible for  all  that  transpires  there,  where  in- 
jury results  either  from  negligence,  carelessness, 
or  malpractice. 

A  surgeon  of  a  railroad,  or  a  family  physician 
is  not  held  liable  for  the  malpractice  of  another 
physician  called  in  his  absence,  though  he  may 
have  recommended  that  in  case  of  need  such  other 
physician  be  called,  when  the  physician  called  is 
an  independent  practitioner,  not  in  the  employ  or 
partnership  of  the  first. -^  Neither  is  one  physi- 
cian or  surgeon  to  be  charged  with  the  negligence 
or  malpractice  of  an  associate.  Thus  in  a  case 
where  two  physicians  were  in  attendance,  and 
one  was  discharged  after  the  first  day,  the  one 
discharged  could  not  be  charged  with  the  negli- 
gence of  the  other;  nor  could  he  be  himself  charged 
with  negligence  in  the  case,  where,  having  once 
been  discharged  in  favor  of  another,  he  refused 
to  attend  at  the  later  request  of  the  patient.^^  Nor 
should  a  partner  be  charged  with  the  act  of  his 
co-partner,  where  the  latter  goes  outside  of  the 
legitimate  scope  or  limit  of  the  partnership,  by 
performing  a  wanton  or  willful  act  which  in  rea- 
son the  partner  would  not  countenance  or  ratify.^" 

52.  Liability  of  Partnership.  Under  the  gen- 
eral law   relative   to  partnerships,   the  members 

28  Hitchcock  V.  Burgett,  38  30  Hyrne  v.  Erwin,  23  S.  C. 
Mich.   501;    Myers   v.    Holborn,       226. 

58   N.   J.   L.  193. 

29  Tomer  v.  Aikiii,  126  Iowa 
114,   101   N.  W.   769. 


LIABILITIES  81 

of  the  firm  will  be  jointly  liable  for  the 
acts  of  the  others  within  the  terms  of  the 
partnership.  This  includes  acts  of  omission  or 
of  commission.^ ^  But,  where  the  act  complained 
of  occurred  before  the  partnership  was  formed, 
the  new  physician  in  the  case  will  not  be  held  lia- 
ble, and  the  first  in  attendance  must  bear  the  entire 
liability. ^^  The  rule  as  to  agency  will  hold  the 
superior  liable  for  the  act  of  a  physician  sent  by 
another  to  attend  a  case  for  him,  or  under  his 
direction,  where  the  service  of  the  second  physi- 
cian is  rendered  purely  as  the  outcome  of  rela- 
tionship between  the  two,  and  not  amounting  to 
a  partnership. 

53.  Survival  of  Action.  Under  the  old  civil 
law  practice,  actions  in  tort,  which  include  suits 
for  malpractice,  do  not  sundve  the  death  of  either 
party.  There  has  been  a  tendency,  however,  to 
base  malpractice  suits  upon  the  idea  of  contract, 
and  in  actions  on  contract  it  has  frequently  been 
admitted  that  the  administrator  or  executor  of 
the  deceased's  estate  may  take  the  place  of  the 
deceased  in  the  case.  However,  it  has  frequently 
been  held  that  an  action  for  malpractice  does  not 
survive  the  death  of  the  physician.^"^  While  recog- 
nizing the  contractual  relation  existing  between 
the  physician  or  surgeon  and  his  patient,  we  must 
also  remember  that  the  contract  is  an  assumed  con- 

31  Hancke  v.  Hooper,   7   Car.       468,  53  Am.  St.  R.  519,  3  N.  E. 

6  P.  81;  Landon  v.  Humphrey,  151;  Jenkins  v.  French,  58  N. 
9   Conn.   209;    Tish  v.   Walker,       H.    532;    Best    v.    Vedder,    58 

7  Ohio  N.  P.  472.  How.    Prac.    187;    McCrory    v. 
32Hyrne  v.   Erwin,   23   S.   C.       Skinner,     2     Ohio     Dec.     268; 

226,  55  Am.  R.  15.  Wolf  v.  Wall,  40  Ohio  111. 

33  Boor   V.   Lowery,    103   Ind. 


82        ESSENTIALS  OF  VETERINARY  LAW 

tract,  and  that  the  death  of  the  practitioner  prac- 
tically removes  the  opportunity  for  learning  the 
essential  facts  from  the  practitioner's  standpoint. 
In  one  case  action  was  brought  several  years  after 
the  accident,  in  which  the  patient  was  thrown  out 
of  a  fast  moving  vehicle  around  a  telegraph  post. 
She  received  numerous  fractures  of  different  parts 
of  the  body,  and  for  a  few  days  the  surgeon  did 
not  expect  to  save  her  life.  The  case  was  one  of 
very  great  difficulty,  and  was  cared  for  in  the 
country  some  distance  from  competent  assistance. 
After  the  death  of  the  surgeon  and  his  wife  suit 
w^as  begun  against  his  estate.  There  was  no  one 
living  who  was  a  competent  witness  in  behalf  of 
the  estate  as  to  facts.  Even  the  consultant  sur- 
geon had  died.  Though  the  attending  surgeon 
had  given,  in  the  presence  of  the  writer,  an  ac- 
count of  the  early  progress  of  the  case,  this  evi- 
dence was  worthless  in  court.  Plainly,  the  case 
was  one  in  which  to  permit  the  suit  to  be  con- 
ducted would  be  to  take  advantage  of  the  help- 
lessness of  the  surgeon's  children,  after  he  had 
served  the  patient  most  faithfully  and  intelli- 
gently. 

54.  Cases  of  Malpractice.  In  the  absence  of  a 
formal  contract  the  law  implies  a  promise  to  com- 
pensate; and  hence  in  such  a  case,  the  physician 
or  surgeon  must  exercise  ordinary  skill  in  render- 
ing his  services.-^^  Where  a  physician,  by  a  slip 
of  the  pen,  makes  a  mistake  in  writing  a  prescrip- 
tion, as  the  result  of  which  the  patient  dies,  the 
fact  that  the  druggist  who  filled  the  prescription 

34  Peck     V.     Hutchinson,     88 
Iowa  320,  55  N.  W.  511. 


LIABILITIES  83 

is  also  negligent  is  no  defense  in  an  action  against 
the  physician  for  malpractice.^^ 

A  veterinarian,  ^preparatory  to  cauterizing  a 
spavin,  so  carelessly  threw  the  animal  as  to  rup- 
ture its  diaphragm,  from  which  injury  it  died. 
The  throwing  of  the  animal  was  held  to  consti- 
tute a  part  of  the  treatment,  and  negligence  there- 
in entitled  the  plaintiff  to  recover  therefor.^® 

A  veterinarian  in  Maine  was  sued  for  the  death 
of  a  colt  after  gelding.  The  fact  that  two  other 
colts  of  about  the  same  age  died  at  about  the  same 
time  following  the  performance  of  the  operation 
by  the  same  veterinarian  would  suggest  some  lack 
of  skill  or  care  on  his  part,  though  the  evidence 
was  not  complete  with  regard  to  those  cases.  How- 
ever, it  was  held  by  the  court  that  it  is  the  duty  of 
a  veterinarian,  after  gelding  a  colt,  to  give  such 
additional  care  as  the  case  may  require  to  insure 
good  results.^'^  An  operation  is  not  finished  until 
the  patient  has  recovered  from  its  performance, 
so  that  no  further  results  may  occur.  Even  when 
an  operation  has  been  skillfully  and  scientifically 
performed,  there  is  still  abundant  opportunity  for 
infection  to  occur  until  after  the  wound  has 
healed;  and  when  infection  does  occur  it  may  be 
exceedingly  difficult  to  determine  whether  the  in- 
fection is  the  result  of  a  lack  of  care  in  the  opera- 
tion itself,  or  in  the  after  care  of  the  animal.  In 
either  case  the  operator  may  be  held  liable.  A 
payment  of  his  fee  at  the  time  of  the  operation 

35  Murdock  v.  Walker,  43  111.  ^^  Williams  v.  Gilman,  71 
App.  590.                                               Me.   21. 

36  Staples  V.  Steed.  167  Ala. 
241,  52  So.  646. 


84        ESSENTIALS  OF  VETERINARY  LAW 

would  not  be  considered  as  a  release  from  liability, 
unless  such  release  were  clearly  indicated.  It  fol- 
lows, therefore,  that  after  an  operation  the  sur- 
geon should  be  watchful  for  the  slightest  evidence 
of  unfavorable  results.  This  is  especially  neces- 
sary in  the  care  of  animals,  for  those  responsible 
for  their  care  are  frequently  unfitted,  through  lack 
of  special  education,  to  detect  and  appreciate  early 
symptoms  of  trouble. 

55.  Liability  for  Accidents.  In  veterinary 
practice  it  is  quite  common,  in  order  to  reduce  the 
expense  of  treatment,  that  the  owner  of  the  animal 
treated  furnishes  needed  assistance  to  the  veteri- 
narian, either  personally,  or  by  the  aid  of  his 
regular  helpers.  In  case  of  accidents  the  question 
arises.  Who  is  liable  ?  A  physician  is  liable  to  his 
assistants  if  he  assures  them  that  there  is  no  dan- 
ger, and  by  virtue  of  trusting  to  his  professional 
knowledge  harm  results,  such  as  becoming  infect- 
ed with  a  disease.^^  When  the  assistant  has  been 
warned  of  the  danger  it  would  be  generally  held 
that  he  was  guilty  of  contributory  negligence,  and 
the  veterinarian  or  physician  would  be  freed  from 
liability.  A  hospital  was  held  liable  for  the  diph- 
theria which  the  nurse  contracted  from  one  of  her 
patients,  it  being  shown  that  cultures  taken 
showed  that  the  first  case  was  one  of  diphtheria, 
but  the  nurse  was  not  informed  of  the  fact.-'^^ 

A  physician  or  surgeon  is  held  liable  if  it  bo 

■ts  Spa  V.   Ely,    8   Hun,   255 ;  ^s  Hewett  v.  Woman 's  Hospi- 

Edwards    v.    Lamb,    69    N.    H.       tal  Aid  Assn.,  73  N.  H.  556. 
599,   45   At.   480,   50   L.   E.   A. 
160. 


LIABILITIES  85 

shown  that  through  his  negligence  an  infectious 
disease  was  conveyed  to  another  patient.^" 

56.  Special  Liability.  It  sometimes  happens  in 
accident  cases  that  an  animal  is  so  seriously  in- 
jured as  to  be  worthless.  Bystanders  urge  that  it 
be  put  out  of  its  misery,  and  the  veterinarian  is 
called  upon  to  render  this  service.  In  case  the 
owner  is  present  and  gives  his  consent  there  is 
no  question  of  the  legal  right ;  but  where  the  owner 
is  absent  a  veterinarian  so  acting  does  it  at  his 
own  risk.  If  the  street  car,  for  example,  which 
has  done  the  injury  represents  a  liability  of  the 
corjjoration  for  the  damage  done,  a  representa- 
tive of  the  company  may  take  the  responsibility 
for  the  destruction  of  the  animal.  Where  fur- 
ther investigation  shows  that  the  employees  of 
the  corporation  were  not  negligent,  or  that  there 
was  contributory  negligence  on  the  part  of  the 
owner  of  the  animal,  such  an  order  of  the  repre- 
sentative of  the  company  might  be  taken  as  an 
acknowledgment  of  liability  on  the  part  of  the 
company;  or  it  might  be  held  that  he  acted  with- 
out authority.  In  the  latter  case  he  counsels  a 
destruction  of  property  not  his  own,  and  such 
illegal  act  would  be  no  protection  for  the  illegal 
act  of  the  veterinarian  in  committing  the  deed. 

The  common  law  of  humanity  might  justify  put- 
ting the  animal  out  of  its  misery;  but  if  it  be  later 
shown  in  trial  of  the  case  that  the  killing  was  un- 
necessary, the  veterinarian  might  be  held  for  the 
destruction  of  the  animal.*^     A  policeman  may, 

40  Piper    V,    Menifee,    12    B,  •»!  See  Miller  v.  Horton,   152 

Mon.  465;    Helland  v.   Briden-      Mass.  540. 
stine,  55  Wash.  470,   104  Pac. 
626. 


86        ESSENTIALS  OF  VETERINARY  LAW 

or  may  not,  have  authority  to  order  the  killing. 
If  he  has  the  authority  the  veterinarian  acting 
under  such  orders  would  be  protected;  but  if  he 
does  not  have  the  authority  the  veterinarian  acts 
at  his  own  peril.  The  veterinarian  may  know  that 
the  killing  is  justifiable,  but  he  must  be  prepared 
to  make  proof  of  the  fact  which  will  convince  the 
court  in  the  face  of  conflicting  testimony.  It  is 
ordinarily  considered  that  a  horse  with  a  broken 
leg  is  useless  and  without  value,  but  this  is  not 
always  tnie.  The  writer  once  had  a  valuable  colt 
whose  hook  was  broken  squarely  across.  Never- 
theless complete  union  occurred,  and  the  horse  did 
many  years  of  hard  service,  and  was  locally  known 
as  a  fast,  long  distance  roadster,  and  he  never 
showed  lameness.  A  mare,  though  lame  from  the 
fracture  of  a  small  bone,  was  still  of  value  for 
breeding.  In  either  case,  had  a  veterinarian  taken 
the  responsibility  of  killing  the  animal,  he  would 
have  assumed  a  liability  for  its  loss. 

57.  Burden  of  Proof.  It  is  a  general  rule  of 
law  that  the  one  making  a  claim  must  prove  it. 
The  fact  that  a  man  is  practicing  veterinary  medi- 
cine would  be  generally  taken  as  an  e^'idence  of 
his  competency  in  that  profession,  aside  from  the 
question  of  his  right  to  practice.  In  his  care  of 
the  case  the  law  presumes  that  he  has  used  due 
care  and  diligence,  in  accord  with  the  state  of  the 
science.  He  is  not  generally  called  upon  to  prove 
that  he  is  competent,  but  it  becomes  the  duty  of 
one  claiming  to  have  been  injured  through  his 
malpractice  or  negligence  to  prove  the  fact  to  the 
jury.  When  he  has  introduced  evidence  to  show 
negligence  or  malpractice  the  defendant  has  an 


LIABILITIES  87 

opportunity  to  present  his  evidence  to  the  con- 
trary. The  question  of  malpractice  is  one  of  fact, 
and  the  burden  of  proof  is  upon  the  plaintiff. "*- 

58.  Defenses.  It  is  no  defense  in  a  suit  for  mal- 
practice, that  the  practitioner  was  practicing  ille- 
gally, unless,  sometimes,  this  illegal  practice  was 
known  to  the  person  so  employing  him.^^  "How- 
ever, if  the  party  employ  a  person  as  a  surgeon, 
knowing  him  not  to  be  one,  he  has  no  civil  rem- 
edy."*^ In  a  suit  against  a  veterinarian  for  un- 
skilled treatment,  it  appeared  that  the  defendant 
had  sued  plaintiff  for  the  services  rendered,  and 
that  the  plaintiff  had,  without  protest  paid  the 
bill  before  suit  was  entered.  However,  the  court 
held  that  this  settlement  was  no  bar  to  suit  for 
malpractice.^^  In  a  number  of  cases  it  has  been 
held  that  if  suit  has  been  brought  for  fees  a  judg- 
ment for  the  physician  will  bar  future  suits  for 
malpractice,  even  when  the  claim  of  malpractice 
has  not  been  made  in  defense  of  claim  for  fees;  ^^ 
but  in  other  cases  it  has  been  held  that  a  suit  for 
fees  will  not  bar  future  damages  suits,  unless  the 
claim  of  malpractice  shall  have  been  raised  in  the 
action  for  fees.^^ 

42  Chase  v.  Nelson,  39  111.  4g  Gates  v.  Preston,  '41  N.  Y. 
App.  53;  Winner  v.  Lathrop,  113;  Blair  v.  Bartlett,  75  N.  Y. 
67  Hun,  511;  Haire  v.  Keese,  7  150;  Bellinger  v.  Craigue,  31 
Phila.  138;  Georgia  N.  R.  Co.  Barb.  534;  Ely  v.  Wilbur,  49 
V.  Ingram,  114  Ga.  639;  Styles  X.  J.  L.  685;  Dale  v.  Donald- 
V.  Tyler,  64  Conn.  432.  son  Lumber  Co.,   48  Ark.   188, 

43  Musser's  Exr.  v.  Chase,  29  2  S.  W.  703. 

Ohio  577.  4T  Eessequie  v.  Byers,  52  Wis. 

44  Chitty's  Blackstone  (1858)  650;  Lawson  v.  Conaway,  37  W. 
B.  Ill,  122,  note,  citing  cases.  Va.    159 ;    Goble    v.    Dillon,    86 

45  Deeves  v.  Lockhart,  51  N.  Ind.  327. 
Y.  Super.  Ct.   302. 


88        ESSENTIALS  OF  VETERINARY  LAW 

There  is  a  well  understood  principle  in  the  law 
of  negligence,  that  if  the  patient,  or  party  com- 
plaining, has  failed  to  follow  the  directions  given, 
or  by  his  own  wilful  or  negligent  act,  causes,  or 
contributes  to,  the  condition  complained  of,  his 
action  is  barred."*^ 

The  cases  of  Morrison  v.  Altig,  and  Conner  v. 
Winton,  above  cited,  both  involve  the  subject  of 
bailment.  (Chapter  X.)  Where  a  stock  owner, 
knowing  that  the  man  to  whom  he  entrusts  the 
care  of  his  animals  is  not  competent,  unless  the 
man  thus  employed,  or  thus  assisting,  be  grossly 
careless,  when  hami  results  the  responsibility 
must  be  placed  upon  the  shoulders  of  the  owner 
thus  making  a  choice  involving  the  risk.  This 
subject  is  thus  discussed  by  Mr.  Justice  Story  in 
his  Commentary  on  ' '  Bailments  " :  ^^ 

**But  even  where  the  particular  business  re- 
quires skill,  if  the  bailee  is  known  not  to  possess  it, 
or  he  does  not  exercise  the  particular  art  or  em- 
ployment to  which  it  belongs,  and  he  makes  no 
pretension  to  skill  in  it;  then,  if  the  bailor,  with 
full  notice  trusts  him  with  the  undertaking,  the 
bailee  is  bound  only  for  a  reasonable  exercise  of 
the  skill  which  he  professes,  or  of  the  judgment 
which  he  can  employ;  and  if  any  loss  ensue  from 
want  of  due  skill,  he  is  not  chargeable.  Thus  (to 
put  a  case  borrowed  from  the  Mohammedan  law), 
if  a  person  will  knowingly  employ  a  common  mat 
maker  to  weave  or  embroider  a  fine  carpet,  he  may 

48  Jones    V.    Angell,    85    Ind.  Hitchcock  v.  Burgett,  38  Mich. 

.376;  Lower  v.  Franks,  115  Ind.  501;   Littlejohn  v.  Arbogast,  95 

334,  17  N.  E.  630;   Hibbard  v.  111.  App.  505. 

Thompson,      109     Mass.     286;  49  453. 


LIABILITIES  89 

impute  the  bad  workmanship  to  his  own  folly. 
So,  if  a  man,  having  a  disease  in  his  eyes,  should 
employ  a  farrier  to  cure  the  disease,  and  he  should 
lose  his  sight  by  the  remedies  prescribed  in  such 
cases  for  horses,  he  certainly  would  have  no  cause 
for  complaint." 

59.  Liability  for  Operation.  In  submitting  a 
case  to  a  physician,  surgeon,  or  veterinarian,  there 
is  implied  a  tacit  agreement  that  the  professional 
man  shall  use  his  best  knowledge  and  treatment, 
and  this  implies  also  an  agreement  to  submit  to 
such  operative  measures  as  seem  to  him  neces- 
sary.^^ Whenever  an  operation  is  not  anticipated 
by  the  owner  of  an  animal  which  is  submitted  to 
the  care  of  a  veterinarian  he  should  inform  such 
owner  before  performing  the  operation,  unless  the 
conditions  are  such  that  it  is  impossible  to  reach 
the  owner  without  jeopardizing  the  life  of  the 
animaL  Also,  if  one  operation  has  been  contem- 
plated and  on  examination  a  more  serious  oper- 
ation seems  indicated,  he  should  delay  the  opera- 
tion until  the  owner  can  be  communicated  with, 
and  his  consent  secured.  However,  having  begun 
the  operation,  when  it  is  found  that  a  more 
extensive  operation  seems  indicated,  to  then  delay 
the  completion  of  the  needed  work  might  increase 
the  danger,  and  the  operator  would  not  be  expected 
to  wait  for  the  further  consent. 

60.  Liability  Under  Enactments.     No  man  has 
a  right  to  break  the  laws  under  which  he  is  liv- 
ing.   Incidentally  to  his  professional  work  a  vet- 
so  state    ex    rel.    Janney    v.       Div.   44,   Cent.   L.   J.   153 ;    Mc- 

Housekeeper,  70  Md.  162;  Clallen  v.  Adanis,  36  Mass.  333. 
Beatty  v.  CuUingsworth,  Q.  B. 


90        ESSENTIALS  OF  VETERINARY  LAW 

erinarian  may  subject  himself  to  penalties  under 
enacted  statutes  or  ordinances.  Thus,  where  a 
local  law  gives  a  body  or  an  officer  the  authority 
to  prevent  cruelty  to  animals,  and  a  man  has  been 
legally  ordered  not  to  work  a  horse,  a  veterinarian 
who  advises  the  owner  that  the  horse  may  be 
worked  may  thereby  incur  the  penalty.  That  is  a 
question  of  opinion  with  the  veterinarian,  but  he 
lias  not  the  legal  authority  to  decide  the  question 
of  fact. 


CHAPTER  V. 

COMPENSATION. 

70. 

Employment    Under    Con- 

§ 81.  Nature  of  a  Lien. 

tract. 

§  82.  Voiding  a  Lien. 

71. 

Competency. 

§  83.  Lien  Not  a  Eight  to  Sell. 

72. 

Eight  to  Sue  for  Fees. 

§  84.  Actions    for    Eecovery    of 

73. 

Illegal   Practitioners. 

Compensation. 

74. 

Effect   of   Malpractice   on 

§  85.  The     Veterinarian     as     a 

Compensation. 

Witness. 

75. 

Who   Is   Liable   for   Com- 

§ 86.  Duty  to  Prepare. 

pensation. 

§  87.  Expert  Testimony. 

76. 

Amount  of  Compensation. 

§  88.  Definition    and    Scope    of 

77. 

Use  of  Mails. 

Expert  Testimony. 

78. 

Liens. 

§  89.  Compensation    as    an    Ex- 

79. 

Veterinarian  a  Bailee. 

pert. 

80. 

Contract  and  Lien. 

70.  Employment  Under  Contract.  When  a  vet- 
erinarian has  been  called  to  render  professional 
service,  and  he  has  responded  to  the  call,  under 
ordinary  circumstances  it  is  legally  understood 
that  the  parties  have  entered  into  an  implied  con- 
tract. On  his  part  the  veterinarian  agrees  to  at- 
tend the  case  until  the  case  is  ended  by  death  or 
recovery,  or  by  the  termination  of  the  relation- 
ship through  the  proper  notice  from  either  party 
to  the  other;  and,  to  give  due  and  diligent  pro- 
fessional ser^dce.  On  the  part  of  the  employer 
there  is  understood  to  be  an  agreement  to  pay  a 
reasonable  fee  for  the  services  rendered.  Any 
variation  from  these  terms  should  be  clearly  un- 
derstood by  agreement  between  the  parties  before 
service  is  rendered,  and  if  other  responsibilities 

91 


92        ESSENTIALS  OF  VETERINARY  LAW 

be  added  on  either  side  there  should  be  a  definite 
agreement  in  writing.  For  example:  It  is  not 
ordinarily  understood  that  there  is  any  warranty 
on  the  part  of  the  physician  or  surgeon  as  to  the 
results  of  his  services,  not  even  that  they  will  be 
beneficial.^  A  conditional  contract  between  a 
patient  and  his  physician,  that  if  the  physician 
effect  a  cure  he  should  receive  a  reasonable  com- 
pensation, is  valid.- 

71.  Competency.  Where  there  is  no  law  regu- 
lating the  practice  of  veterinary  medicine  it  has 
been  held,  in  an  action  to  recover  for  professional 
services,  that  the  plaintiff  must  prove  his  quali- 
fications as  a  veterinarian.^  In  other  words,  where 
the  law  imposes  no  restriction  or  qualification  in 
the  practice  of  the  profession,  the  fact  that  a 
man  renders  a  service  is  not  of  itself  evidence  that 
he  is  entitled  to  compensation  as  a  veterinarian. 
He  might  be  regarded  as  simply  entitled  to  com- 
pensation for  his  labor,  and  not  for  professional 
opinion  and  knowledge. 

Where  the  law  regulates  the  practice,  by  re- 
quiring either  registration  or  license,  there  has 
been  some  difference  of  interpretation  as  to  re- 
quirements in  suits  for  professional  fees.  Thus, 
in  England  it  has  been  held  that  the  fact  that  an 
apothecary's  assistant  had  been  paid  for  medi- 
cines could  not  be  considered  as  proof  that  he  was 

1  Tefft  V.  Wilcox,  6  Kas.  46 ;  7    Carr,    &    P.    81;    Patten    v. 

Styles  V.   Tyler,  64   Conn.   432,  Wiggin,  51  Me.  594. 
30    Atl.     165;     McCandless    v.  2  Mock  v.  Kelly,  3  Ala.  387. 

McWha,  22  Harris    (Pa.)   261;  3  Conkey    v.    Carpenter,    106 

Gallaher  v.   Thompson,   Wright  Mich.   1,  63   N.   W.   990. 
(Ohio)  466;  Hancke  v.  Hooper, 


COMPENSATION  93 

practicing  as  an  apothecary.'*  The  onus  of  proof 
is  upon  the  holder  to  show  that  he  has  a  license.^ 
Similarly  in  this  country  it  has  been  held  that 
a  physician  or  surgeon  cannot  recover  pay  for  his 
services  without  proof  of  his  license  to  practice.^ 
However,  it  has  also  been  held  that  the  fact  of 
his  employment  is  a  recognition  of  his  capacity, 
relieving  him,  in  an  action  to  recover  for  his  fees, 
of  the  duty  of  producing  his  license,  and  throwing 
the  burden  of  proof  upon  the  defendant.'^  Both  of 
these  opinions  should  be  taken  together  in  order 
to  get  a  reasonable  interpretation.  The  fact  of 
employment  should  be  accepted  as  an  evidence  of 
the  legal  competency  of  the  practitioner,  and  the 
defendant  in  a  suit  for  fees  should  not  be  per- 
mitted to  impede  justice  by  setting  up  a  tech- 
nical objection,  forcing  the  plaintiff  to  produce 
his  license,  or  evidence  of  registration.  If  he 
undertakes  to  avoid  jDajmient  of  his  obligation  by 
claiming  that  the  practitioner  is  not  legally  quali- 
fied, he  should  be  forced  to  present  evidence  to 
that  effect.  It  would  then  become  incumbent 
upon  the  plaintiff  to  produce  the  license  itself 
(§37),  or,  where  registration  only  is  required,  to 
produce  evidence  that  he  had  legally  been 
registered. 

72.  Right  to  Sue  for  Fees.  According  to  the 
old  English  custom  a  physician  was  supposed  to 
**give"  his  services,  and  his  clients  returned  the 

*  Brown  v.  Robinson,  1  C.  &  Har.    144;    Bower   v.    Smith,   8 

P.  264.  Ga.  74. 

5  Apothecaries '  Co.  v.  Bent-  ^  Prevosty  v.  Nichols,  1 1 
ley,  1  C.  &  P.  538.  Mart.    O.    S.    21;    Dickenson   v. 

6  Adams'  Adm.  v.  Stewart,  5  Gordy,  5  Rob.  (La.)  489. 


94        ESSENTIALS  OF  VETERINARY  LAW 

favor  by  ''giving"  him  an  honorarium.  A  sur- 
geon was  considered  to  be  on  a  lower  plane, 
xlccording  to  the  old  common  law  therefore  a  sur- 
geon could  sue  for  fees,  and  be  prosecuted  for  mal- 
practice, but  the  physician  was  not  liable  for  mal- 
practice,^ nor  even  for  manslaughter  when  his 
patient  died,^  as  a  result  of  his  treatment.  How- 
ever, if  one  claimed  to  be  a  physician  or  surgeon 
when  he  was  not,  and  harm  resulted  from  his 
service,  he  might  be  prosecuted  criminally  for  the 
harm  done,  and  sued  for  civil  damages.^ "^  On  the 
supposition  that  his  compensation  was  simply  an 
honorarium  a  physician  could  not  bring  action 
therefor.  ^^  However,  the  right  of  physicians  and 
surgeons,  including  veterinarians,  to  bring  action 
to  recover  for  their  services  has  generally  been 
recognized  by  the  common  law  in  the  United 
States.i2 

73.  Illegal  Practitioners.  Where  the  law  re- 
quires registration,  a  physician  who  has  failed  to 
register  cannot  recover  for  professional  service 
rondered.^^  Where  the  law  requires  physicians 
to  obtain  a  license,  an  unlicensed  physician  cannot 
recover  for  services  rendered. ^^  A  promise  to  pay 
one  practicing  illegally  is  void.  It  is  a  contract 
void  in  its  inception.^^ 

N.  J.  L.  60;  Judah  v.  Me- 
Namee,  3  Blackf.  269. 

13  Murray  v.  Williams,  121 
Ga.  63,  48  S.  E.  686. 

i4  0rr  V.  Meek,  111  Ind.  40, 
11  N.  E.  787. 

15  Puckett  V.  Alexander,  102 
N.  C.  95,  8  S.  E.  767,  3  L.  R. 
A.  43;  Coyle  v.  Campbell,  10 
Ga.  570;    Underwood  v.    Scott, 


sChitty's 

Blaekstone, 

III, 

122,    note.      But    see,    IV, 

197, 

note. 

SChitty's 

Blackstone, 

IV, 

197. 

loChitty's 

Blaekstone, 

IV, 

197,  note. 

iiChitty's 

Blaekstone, 

III, 

28,  note. 

12  Green    v 

.    Higenbotam,    3 

COMPENSATION  95 

74.  Effect   of   Malpractice    on    Compensation. 

Negligence  does  not  necessarily  preclude  the  re- 
covery of  fees,  perhaps  reduced  in  amount.^®  It 
is  a  general  rule,  however,  recognized  by  the  com- 
mon law,  that  where  the  practitioner  has  been 
guilty  of  negligence  and  malpractice  he  cannot 
recover  for  his  services. ^^  It  must  be  recognized 
that  there  is  a  difference  between  simple  negli- 
gence and  malpractice,  though  malpractice  is  a 
result  of  negligence.  It  should  be  apparent  to 
any  one,  that  a  man  who  is  constantly  intoxicated 
cannot  render  due  care  in  such  professional  serv- 
ice; but  if  one  continues  to  employ  such  a  practi- 
tioner, knowing  his  habits,  he  is  thereby  estopped 
from  making  that  a  ground  for  refusal  to  pay  for 
the  service.^ ^  If  there  be  negligence  on  the  part  of 
the  practitioner,  there  is  also  contributory  negli- 
gence on  the  part  of  the  client.  A  man  cannot 
thus  take  an  advantage  of  his  own  negligence. 

75.  Who  is  Liable  for  Compensation.  Ordi- 
narily it  is  the  owner  of  live  stock  who  sends  for 
the  veterinarian,  and  in  such  a  case  there  would 
be  no  question  as  to  who  must  pay  for  the  services. 
Under  the  general  rule  of  respondeat  superior 
the  act  of  a  subordinate  is  considered  as  the  act 
of  the  principal,  and  when  a  servant  sends  for  the 
veterinarian  it  will  be  considered  as  if  the  owner 
himself  had  sent  for  him.  It  frequently  happens 
in   accident   cases   especially,   that   some   person 

43  Kas.  714,  23  Pae.  942;  Max-  i^Chitty's     Blackstone,     III, 

well  V.  Swigart,  48  Neb.  789,  67  122,  note. 

N.  W.   789.  isMcKleroy     v.     Sewell,     73 

16  Whitesell  v.  Hill,  66  N.  W.  Ga.  657. 
894. 


96        ESSENTIALS  OF  VETERINARY  LAW 

other  than  the  owner  either  comes  in  person,  or 
telephones  to  the  veterinarian  asking  for  his  im- 
mediate service.  The  veterinarian  is  under  no 
obligation  to  respond,  and  if  he  does  respond  he 
runs  his  own  risk  as  to  compensation.  A  person 
calling  a  physician  to  attend  one  for  whose  sup- 
port he  is  not  responsible  is  not  liable  for  the  pay- 
ment of  the  services.^^  He  is  not  liable  for  the 
payment  unless  it  be  distinctly  agreed  between 
the  physician  and  the  party  calling.^*'  Where  a 
physician  renders  service  to  one  at  the  mere  re- 
quest of  a  third  person  on  whom  there  is  no  obliga- 
tion to  provide  therefor,  the  law  will  not  imply  a 
contract  binding  the  third  person  to  pay  there- 
for; but  where  an  officer  of  a  company  directed  a 
physician  to  attend  an  employee  injured  in  line 
of  duty  the  physician  can  recover  reasonable  com- 
pensation.^^  Applying  these  principles  in  veteri- 
nary practice  we  might  reasonably  say  that  when 
the  owner  of  an  animal,  or  one  of  his  employees 
or  a  member  of  his  family,  calls  for  the  services 
of  a  veterinarian  for  the  said  animal,  the  owner 
will  be  considered  to  have  entered  into  a  contract 
to  pay  the  veterinarian  for  his  professional  serv- 
ices. When  an  animal  has  become  sick  or  injured, 
and  the  veterinarian  has  been  called  either  by  the 
party  legally  responsible  for  the  sickness  or  in- 
jury, or  by  his  legal  representative,  it  will  be 
presumed  that  the  party  thus  legally  responsible 

19  Starrett  v.    Miley,    79    111.  21  Weinsberg     v.     St.     Louis 

App.  658;   Dorion  v.  Jacobsen,      Cordage  Co.,  135  Mo.  App.  553, 
113   111.  App.   563;    Kearnes  v.       116  S.  W,  461. 
Caldwell,  7  Ky.  L,  450. 

2oGrattop     v.     Eowheder,     1 
Neb.  660,  95  N.  W.  679. 


COMPENSATION  97 

will  pay  the  bill.  If  the  veterinarian  has  been 
called  by  one  neither  responsible  for  the  condi- 
tion of  the  animal,  nor  its  owner  or  his  repre- 
sentative, it  will  be  presumed  that  the  act  of  call- 
ing for  professional  aid  proceeded  purely  from 
humane  motives,  and  if  the  veterinarian  responds 
he  can  hold  no  one  liable,  in  the  absence  of  a  pre- 
vious agreement.  If,  however,  he  responds,  and 
the  owner  accepts  his  services,  either  by  permit- 
ting him  to  continue,  or  by  following  his  direc- 
tions, or  by  getting  a  prescription  filled,  it  will  be 
considered  that  the  owner  thereby  assumes  the 
liability  for  the  payment. 

The  case  is  not  always  so  simple  as  it  looks,  and 
the  decision  as  to  liability  for  payment  may  hinge 
upon  a  very  small  item.  Suppose  that  an  automo- 
bile runs  into,  and  injures  an  animal.  If  the  acci- 
dent be  due  to  the  carelessness  of  the  owner  of 
the  animal,  only  the  owner  could  be  held;  and  not 
he  unless  by  some  act  he  puts  himself  under  the 
obligation,  as  by  calling  the  veterinarian  or 
acquiescing  in  the  treatment.  But  if  the  veterina- 
rian be  called  by  the  owner  of  the  automobile, 
not  to  attend  to  the  injuries,  but  to  determine 
their  extent,  and  as  a  matter  of  defense  for  the 
motorist,  clearly  he  would  be  under  obligations 
to  pay  for  the  service  thus  rendered;  though  if 
the  veterinarian  incidentally  treated  the  injuries 
the  motorist  would  be  under  no  obligation  to  pay 
for  this  extra  service.  The  same  general  rules 
would  apply  in  case  the  responsibility  for  the 
accident  rests  upon  both  the  owner  of  the  animal 
and  the  owner  of  the  automobile. 

When  the  accident  has  been  the  result  of  the 


98        ESSENTIALS  OF  VETERINARY  LAW 

negligence  of  the  owner  of  the  automobile,  if  the 
veterinarian  be  called  by  the  owner  of  the  animal 
he  must  look  to  said  owner  for  his  pay,  although 
the  owner  may  later  recover  from  the  owner  of 
the  auto.  If  the  veterinarian  be  called  by  the 
owner  of  the  auto,  the  owner  of  the  auto  will  be 
expected  to  compensate.  When  called  by  a  third 
person,  not  representative  of  either  party,  there 
is  no  obligation,  in  the  absence  of  previous  agree- 
ment, or  of  governmental  enactments.  In  every 
case,  the  act  of  an  employee  will  be  deemed  the 
act  of  the  principal. 

Dogs  are  legally  regarded  as  ''qualified  prop- 
erty. ' '  ^-  That  is,  they  are  regarded  as  property 
only  when  kept  within  the  provisions  of  the  law. 
Thus,  where  the  law  calls  for  a  license,  or  a  collar, 
or  the  wearing  of  a  muzzle,  a  violation  of  such 
provision  removes  the  protection  of  the  law  for 
the  animal.  It  has  therefore  been  held  that  under 
such  conditions  there  is  no  recovery  for  the  killing 
of  such  an  animal.^^  But  a  dog  is  personal  prop- 
erty with  a  value,^*  so  that  ordinarily  the  liability 
of  the  automobilist  would  depend  upon  whether 
or  not  the  accident  was  due  to  his  carelessness. 
(§  189.) 

"There  is  nothing  in  the  ordinary  relation  be- 
tween a  physician  and  his  patient  which  would 
prevent  the  former  from  discontinuing  his  serv- 
ices on  the  account  of  the  latter,  and  entering  into 
a  contract  with  another  for  the  payment  of  the 

22  Public  Health,  186.  241;    Heisrodt  v.   Hackett,    34 

23  Sentell  v.  New  Orleans,  etc.,  Mich.  283,  22  Am.  E.  529 ; 
K.  Co.,  166  U.  S.  698.  Nehr  v.  State,  35  Neb.  638,  53 

24  Anson  v.  Dwight,  18  Iowa  N.  W.  589,  17  L.  R.  A.  771. 


COMPENSATION  99 

charges  for  his  subsequent  attendance,  and  the 
assent  of  the  patient  to  tlie  making  of  such  con- 
tract is  not  necessary. ' '  ^^  This  was  a  case  in 
which  a  physician  had  been  called  to  attend  a  man 
who  was  injured.  Upon  hearing  of  the  accident, 
and  not  knowing  who  was  in  charge  of  the  case, 
the  man's  employer  telegraphed  to  the  same  phy- 
sician, directing  him  to  attend  the  case  and  im- 
plying that  he  would  pay  the  bill.  Such  an  order 
is  entirely  different  from  the  ordinary  call  of  a 
third  person.  It  is  not  an  impersonal  matter,  but 
it  involves  the  personal  obligation  of  the  one  giv- 
ing the  order,  though  put  in  the  fomi  of  a  request. 
No  matter  by  whom  first  called,  there  is  nothing 
wliich  would  prevent  a  veterinarian  from  trans- 
ferring his  future  charges  to  the  account  of  an- 
other, when  the  third  party  thus  requests. 

For  self  protection  it  is  quite  customary  among 
certain  classes  of  corporations  to  pay  for  first  aid 
for  their  employees,  and  for  such  as  may  be  made 
ill  or  injured  in  connection  with  the  operation  of 
the  corporation,  and  continuing  to  pay  for  such 
services  until  the  liability  of  the  corporation  shall 
be  shown  not  to  exist.  For  example,  a  man  is 
injured  by  a  street  car.  A  surgeon  is  called  and 
attends  to  the  case.  The  street  car  corporation 
asks  for  a  report  of  the  injuries  discovered,  and 
pays  for  this  first  attendance.  The  patient  is  then 
at  liberty  to  select  whom  he  wishes  to  look  after 
the  case.  If,  however,  it  shall  appear  that  the  cor- 
poration is  liable  for  the  accident,  its  officers  may 
provide  their  own  surgeon  for  future  service.  The 

25  White   V.    Mastin,   38    Ala. 
147. 


100      ESSENTIALS  OF  VETERINARY  LAW 

fact  that  a  physician  or  surgeon  has  been  called 
in  an  emergency,  and  has  rendered  a  service,  gives 
him  no  claim  upon  the  future  of  the  case.  If  the 
patient,  or,  in  the  veterinaiy  practice,  the  owner 
of  the  animal  injured,  desires  to  make  a  change  in 
attendant  he  has  a  perfect  right  so  to  do,  but  he 
should  give  notice  thereof  to  the  first  attendant. 
That  such  a  practice  exists  among  corporations 
does  not  place  an  obligation  upon  other  corpora- 
tions to  do  the  same.  Where  it  is  a  well  known 
practice  of  a  certain  company  to  pay  for  first  aid, 
that  practice  should  be  considered  as  binding 
upon  the  company  until  it  shall  give  due  notice  of 
a  change  of  method;  for  acting  upon  the  custom 
of  that  company  the  physician,  surgeon,  or  veteri- 
narian might  respond  to  a  call  and  render  service 
when  he  otherwise  would  not  do  so. 

Likewise,  it  is  the  custom  of  certain  companies 
to  employ  their  own  medical  and  surgical  attend- 
ants; and  in  case  of  emergency,  no  matter  by  whom 
called  or  notified,  if  the  company  surgeon  attends, 
the  company  pays  the  bill;  but  if  another  surgeon 
be  called  the  company  does  not  pay  the  bill  unless 
it  shall  be  shown  that  the  company  was  respons- 
ible for  the  accident. 

The  call  of  the  physician,  surgeon,  or  veterina- 
rian may  be  made  by  a  policeman  or  other  officer 
of  the  city.  This  of  itself  does  not  imply  that  the 
city  will  pay  the  bill.  Unless  there  be  some  defi- 
nite provision,  either  in  the  statutes  of  the  state, 
the  ordinance  of  the  city,  or  the  resolutions  of  the 
city  council  giving  such  officer  authority  to  call 
such  professional  attendants,  his  act  Avill  be  con- 


COMPENSATION  101 

sidered  as  that  of  a  citizen,  and  not  of  an  officer. 2'' 
Then  there  would  be  no  obligation  on  the  part  of 
the  city  to  pay  for  snch  service.  Where  the  act 
is  legally  authorized  by  such  statute,  ordinance, 
resolution  or  proper  regulation,  the  fact  of  calling 
would  impose  on  the  city  government  an  obliga- 
tion to  pay. 

When  a  veterinarian  responds  to  a  call  given 
by  a  third  party,  in  order  to  charge  the  call,  or 
calls,  against  the  said  third  party,  he  should  be 
sure  that  he  has  a  definite  agreement  on  the  part 
of  such  third  party  to  pay  for  the  sei'vice.  If 
possible,  he  should  have  the  agreement  made  in 
writing,  signed  by  the  said  third  party,  and  the 
agreement  should  state  in  general  terms  the  limits 
of  the  service  required.  If  not  in  writing  it  should 
be  made  in  the  presence  of  one  or  two  reliable  wit- 
nesses. Many  physicians  carry  prescription  blank 
books  with  carbon  sheets  for  the  preservation  of 
duplicates.  A  short  order,  written  on  such  a  blank, 
and  signed  by  the  said  third  party  is  sufficient, 
and  the  duplicate  should  be  torn  out  and  pre- 
sented to  the  party  so  signing,  for  his  own  pro- 
tection in  case  of  a  misunderstanding.  Duplicate 
short  reports  of  findings  may  be  made  in  the  same 
way  for  possible  future  reference  in  case  of  acci- 
dents. Where  there  is  a  possibility  of  future  legal 
determination  of  liability  these  records  are  of  the 
greatest  importance,  and  negative  findings  are  of 
as  much  importance  sometimes  as  those  which  are 
positive.  The  fact  that  there  is  no  record  of  a 
broken  bone  is  not  evidence  that  there  is  no  such 

26  Public  Health,  376. 


102      ESSENTIALS  OF  VETERINARY  LAW 

injury,  for  the  recorder  may  have  forgotten  to 
make  that  record,  especially  in  the  case  of  small 
bones.  Or  the  omission  may  be  due  to  the  fact 
that  the  surgeon  has  not  discovered  it,  because 
of  his  neglect.  The  fact  that  he  records  "no  bones 
broken"  is  positive  evidence  as  to  his  findings. 
Evidence  of  former  injury  should  also  be  record- 
ed. It  sometimes  happens  that  unprincipled  liti- 
gants charge  old  injuries  against  recent  accidents. 

76.  Amount  of  Compensation.  The  law  im- 
plies an  obligation  to  pay  the  reasonable  value  of 
medical  services.^'^  In  an  action  for  services  of  a 
veterinarian,  plaintiff  is  entitled  to  recover  ordi- 
nary and  reasonable  charges  usually  made  for 
such  services  by  members  of  the  same  profession 
of  similar  standing,  but  it  is  not  admissible  to 
show  what  the  plaintiff  charged  another  person  for 
similar  services,  according  to  the  opinion  of  a 
southern  court. ^^  While  this  might  be  a  correct 
ruling  relative  to  unusual  cases,  it  would  seem 
not  to  be  justified  where  his  charges  are  generally 
kno'W'Ti  in  the  community,  or  where  his  fee  bill  is 
printed,  as  on  his  billheads. 

In  an  Arkansas  case  invoh'ing  damages  the  at- 
tending surgeons  were  instrumental  in  effecting 
a  compromise,  but  they  were  nevertheless  forced 
to  bring  action  for  their  sendees.  The  court  said 
that  where  no  amount  has  been  agreed  upon,  each 
side  may  introduce  evidence  as  to  the  value  of 
the  services,  but  it  is  an  error  to  introduce  evi- 
dence that  the  surgeons  were  instrumental  in  ef- 

-"  Herndon  v.  City  of  Spring-  =' Marshall  v.  Bahnsen,  1  Ga. 

field,    137    Mo.    App.    513,    119       App.  485,  57  S.  E.  1006. 
S.  W.  467. 


COMPENSATION  103 

fecting  the  compromise  settlement. -'^  It  is  to  be 
presumed  that  they  acted  simply  as  friends  in  the 
compromise  matter.  Their  profession  is  that  of 
physicians  and  surgeons,  and  such  efforts  as  they 
might  have  made  in  the  compromise  proceedings 
was  plainly  outside  of  their  professional  duty. 
Were  they  also  lawyers,  they  might  possibly  have 
been  entitled  to  compensation  therefor,  provided 
their  action  therein  was  with  the  knowledge  and 
consent  of  the  party  whom  they  represented.  It 
is  no  part  of  a  veterinarian's  professional  duty  to 
act  as  a  lawyer  to  effect  a  settlement  of  a  claim, 
though  his  statement  of  the  case  may  have  some 
bearing.  He  may,  perhaps,  make  an  extra  item 
of  a  report  of  the  extent  of  the  injury,  but  such 
charge  should  be  independent  of  any  possible  re- 
sult of  the  report.  It  should  simply  state  the  facts, 
as  he  knows  them.  To  receive  extra  compensation 
for  effecting  a  compromise  settlement  would  be  to 
cast  doubt  upon  the  honesty  of  his  report. 

77.  Use  of  Mails.  One  has  no  unlimited  right 
to  the  use  of  the  United  States  mail  for  the  pur- 
pose of  collecting  his  accounts.  Bills,  or  requests 
for  payment  should  not  be  sent  on  postal  cards. 
The  bill  should  be  in  a  sealed  envelope.  Neither, 
even  in  such  a  sealed  envelope,  should  there  be 
anything  which  could  be  interpreted  as  a  threat, 
or  as  abuse.  A  violation  of  these  points  creates 
a  liability  to  prosecution  under  the  national  laws. 

78.  Liens.  The  question  is  frequently  asked 
whether  or  not  a  veterinarian  has  a  right  to  hold 

29  Henderson  &  Campbell  v. 
Hall  &  Hughes,  87  Aik.  1,  112 
S.  W.  171. 


104      ESSENTIALS  OF  VETERINARY  LAW 

animals  treated  until  the  bill  has  been  paid.  It 
must  be  remembered  that  the  veterinary  profes- 
sion arose  from  the  ranks  of  the  farriers,  or  horse- 
shoers,  so  that  early  decisions  are  based  upon  the 
work  of  the  farrier.  Also,  that  to  no  small  degree 
the  bills  of  the  veterinarians  include  items  for  the 
board  of  the  animals  treated;  and  sometimes  the 
board  is  the  only  item.  By  either  common  law  or 
statute  it  would  be  quite  possible  for  the  veterina- 
rian to  have  a  lien  on  one  and  not  on  the  other  ac- 
count. Thus,  in  an  old  English  decision  it  was 
held  that  the  farrier  had  a  lien  for  curing  the  ani- 
mal, but  not  for  feed.^*^  The  term  ''agister"  (or 
** agistor")  was  originally  held  to  mean  one  who 
took  cattle,  or  other  stock,  to  pasture.  It  is  ordi- 
narily held  to  include  other  keeping  and  feeding. 
By  the  old  English  common  law  an  agister  had  a 
lien  upon  the  stock  in  his  possession  for  the  pay- 
ment of  the  keep  of  the  animals,  but  this  lien  was 
abolished  by  an  act  of  parliament.  On  the  other 
hand,  many  American  states  have  enacted  statutes 
giving  a  right  to  such  lien,  in  the  case  of  agisters 
generally,  and  for  such  special  occupations  as 
innkeepers  and  livery  keepers.  (§§233-240.) 
The  right  to  hold  an  animal  for  both  cure  and 
board  has  been  recognized  in  many  cases.^^  It 
may  perhaps  be  stated  as  a  general  rule  that  the 
veterinarian  has  a  lien  on  the  animals  treated  so 
long  as  they  are  in  his  possession.  This  rule  is 
not  absolute,  and  is  open  to  question.  In  one 
Canadian  case  the  lower  court  held  that  the  farrier 

soBrenan    v.    Currint,    Say.,       50;  Lord  v.  Jones,  24  Me.  439; 
224.  Hoover    v.    Epler,    52    Pa.    St. 

siDanforth  v.  Pratt,  42  Me.       522. 


COMPENSATION  105 

had  no  lien.  The  higher  court,  in  a  very  unsatis- 
factory opinion  because  of  the  lack  of  complete- 
ness in  the  records,  affirmed  the  decision  of  the 
lower  court,  on  the  ground  that  the  practice  was 
open  to  question.^2 

A  lien  may  be  created  by  common  law,  by 
statute,  or  by  contract.  When  by  statute  the  terms 
of  the  statute  must  govern  its  application;  but 
such  a  law  cannot  be  retroactive,  and  thus  affect 
previous  accounts.  Thus  where  a  party  kept 
stock  for  several  years,  and  during  that  time  a 
statute  was  enacted  giving  an  agister  a  lien  on 
the  stock  until  the  expense  of  the  keep  be  paid, 
it  was  held  that  this  lien  covered  so  much  of  the 
account  as  occurred  after  the  act  was  in  opera- 
tion, but  it  did  not  cover  the  previous  time.^^  A 
contract  to  pay  for  the  keep  of  stock  before  it  is 
moved  creates  a  lien.^^ 

79.  Veterinarian  a  Bailee.  Whenever  a  thing 
owned  by  one  party  is  left  in  the  care  of  another 
than  the  owner,  the  operation  is  called  "bail- 
ment," the  party  leaving  it  is  the  ''bailor,"  and 
the  one  receiving  it  is  called  a  ''bailee."  Bail- 
ment, then,  is  a  contract,  in  which  the  bailee  ac- 
cepts the  responsibility  to  care  for  the  article, 
often  for  some  other  purpose  than  the  simple  keep- 
ing of  it  safe,  and  to  return  it  again  to  the  bailor 
when  the  bailor  demands  it.  The  law  of  bailment 
is  then  important  for  the  veterinarian  for  it 
includes  many  obligations  and  liabilities.  The 
amount  of  his  responsibility  as  a  bailee  may  vary 

82  Nichols   V.   Duncan,    11    U.  34  McCoy    v.    Hock,    .S7    Towa 

C.  Q.  B.  332.  436. 

33  Allen  V.  Ham,  63  Me.  532. 


106      ESSENTIALS  OF  VETERINARY  LAW 

according  to  many  circumstances.  A  fuller  dis- 
cussion of  the  subject  will  be  found  in  Chapter  X. 

Veterinarians  know  that  dogs  and  cats  are  fre- 
quently left  with  them  by  humane  persons,  simply 
to  assure  the  animals  a  home,  and  with  no  expec- 
tation or  intention  of  ever  claiming  the  animal 
again.  Others  are  left  in  good  faith  when  the  own- 
ers are  to  be  away  from  home  for  a  time.  It  is 
often  impossible  for  the  bailee  to  know  to  which 
class  his  patron  may  belong.  It  therefore  becomes 
important  for  him  to  protect  himself. 

Let  us  suppose  a  few  cases :  A  brings  a  dog  to 
the  dog  hospital  and  asks  the  terms  for  keeping- 
it.  He  says  that  he  is  going  away  for  a  time  and 
wants  his  dog  well  cared  for.  He  states  that  he 
values  the  dog,  on  account  of  associations,  at 
$1,000.  He  pays  for  ten  weeks'  board  and  departs. 
The  animal,  we  may  suppose,  is  practically  worth- 
less for  any  one  else.  At  the  close  of  nine  months 
or  a  year,  not  having  heard  from  A,  the  veterina- 
rian concludes  that  A  has  simply  abandoned  the 
dog,  and  orders  it  killed.  The  next  day  A  appears 
and  asks  for  his  dog,  and  the  bill  for  its  keep.  The 
veterinarian  cannot  comply  with  the  demand  for 
the  animal.  He  is  then  liable  for  the  value  of  the 
dog,  and  in  such  a  case  the  value  would  probably 
be  assessed  by  the  jur^^  at  a  price  nearer  the 
appraisement  of  the  owner  than  that  of  the  bailee. 
Further;  because  the  bailee  failed  to  keep  his 
contract  and  deliver  the  dog,  it  is  questionable 
whether  any  jury  would  ponnit  him  to  deduct  any 
amount  for  the  board  of  the  animal. 

But  if  A,  a  few  days  after  leaving  the  dog, 
should  chance  to  meet  B,  and  inform  him  that  ho 


COMPENSATION  107 

had  taken  that  means  of  abandoning  the  dog,  he 
would  thereby  relinquish  all  right  and  title  to  the 
animal,  which  would  thus  become  the  property  of 
the  bailee.  Could  the  veterinarian  prove  this,  he 
clearly  would  not  be  assessed  for  the  loss  of  the 
animal;  and  he  might  be  able  to  collect  the  full 
amount  of  the  board  from  A  on  the  contract  made. 
80.  Contract  and  Lien.  There  may  be  some  pos- 
sible question  raised  at  settlement  of  account  as  to 
the  purpose  for  which  an  animal  was  left  with  the 
veterinarian.  It  is  the  veterinarian's  duty  to  him- 
self to  safeguard  himself  as  much  as  possible. 
It  is  a  custom  in  bailment  generally  for  the  bailee 
to  give  to  the  bailor  some  fonn  of  a  receipt.  It 
would  be  well  for  the  veterinarian  to  do  the  same 
where  animals  are  left  with  him  either  for  board 
or  treatment.  It  is  customaiy  in  many  veterinary 
infinnaries  to  make  out  a  memorandum  card  for 
each  patient  or  boarder.  This  may  be  worded  as 
a  receipt  and  made  in  duplicate  and  one  copy  given 
the  owner.  It  should  state  the  name  and  address 
given  by  the  bailor,  tlie  number  and  kind  of  ani- 
mals, or  description  or  name  of  the  animal  left, 
and  the  purpose  for  which  left;  and  such  receipt 
should  contain  a  statement  to  the  effect  that  the 
animal  is  left  in  compliance  with  the  following 
rules  or  regulations,  to  which  it  is  thereby  under- 
stood that  the  bailor,  or  owner,  agrees.  The  re- 
ceipt should  state  the  terms  agreed  upon,  or  the 
fixed  charges,  and  that  it  is  understood  that  a 
lien  exists  upon  the  animal,  or  animals,  until  the 
bill  shall  be  paid ;  or  before  the  animal  is  removed 
all  accounts  must  be  settled.  No  verbal  agreement, 
not  in  harmony  with  the  receipt,  has  legal  value. 


108      ESSENTIALS  OF  VETERINARY  LAW 

If  no  amount  is  stated  in  the  receipt  for  services, 
it  will  be  presumed  that  the  charges  will  be  rea- 
sonable. 
A  form  of  receipt  may  be  something  as  follows : 

Received  from  John  Doe,  175  South  street,  Vin- 
cennes,  a  male  fox  terrier  dog  with  brown  right 
ear,  (or,  named  ''Gyp")  for  treatment  and  hoard, 
subject  to  the  following  rules  and  rates,  to  whicb 
it  is  understood  that  the  owner  agrees.  Board,  for 
dogs,  $2.00  per  week.  Professional  fee  table  on 
back  of  receipt.  All  bills  to  be  paid  before  re- 
moval of  the  animals.  Animals  not  paid  for  will 
be  sold  in  6  months. 
Vincennes,  Ind.  Signed, 

April  7,  1914.  Peter  Brown, 

Veterinarian. 

It  is  often  advisable  that  other  rules  be  given, 
such  as  that  board  must  be  paid  at  least  every 
second  month,  and  that  the  owner  of  the  estab- 
lishment agrees  to  give  ordinary  care,  but  that 
he  does  not  assume  liability  for  unavoidable  acci- 
dents, etc. 

81.  Nature  of  a  Lien.  It  is  one  of  the  essen- 
tials of  a  lien  that  it  must  bear  some  direct  rela- 
tionship to  the  thing  for  which  it  is  held.  A  horse 
taken  to  board  could  not  be  held  on  account  of  vet- 
erinary services  for  cattle  on  the  farm.  There  may 
be  some  question  as  to  whether  an  animal  may  be 
held  for  any  old  account.  The  English  case  of 
Scarfe  v.  Morgan  ^^  seems  to  support  such  a  claim. 
One  Scarfe  brought  a  mare  to  be  served  on  Sunday 
by  the  stallion  of  Morgan.    Morgan  held  the  mare, 

35  4  M.  &  W.  270. 


COMPENSATION  109 

not  only  for  the  last  sei-vice,  but  also  for  former 
serving  of  that  mare  and  others.  Scarfe  made 
tender  of  the  fee  for  last  service,  which  was  re- 
fused. He  then  brought  action  against  Morgan 
to  secure  possession  of  the  mare,  or  her  full  value. 
His  first  claim,  that  the  contract  having  been  made 
on  Sunday  was  illegal,  was  put  aside  by  the 
court  on  the  ground  that  it  was  a  completed  con- 
tract. Scarfe  then  claimed  that  Morgan,  by  com- 
bining old  accounts  in  his  lien  vitiated  the  right 
of  lien.  The  court  held,  however,  that  the  different 
servings  were  not  independent  accounts,  but  that 
each  was  a  part  of  one  general  account,  and  that 
the  lien  held.    (§  234.) 

82.  Voiding  a  Lien.  Possession  is  essential  in 
liens.  Therefore,  when  the  veterinarian  volun- 
tarily relinquishes  the  possession  of  the  animal  to 
the  owner,  or  to  others  not  in  his  own  employ,  he 
thereby  loses  his  right  of  lien,  and  according  to 
the  general  rule  a  lien  once  lost  cannot  be  re- 
vived.^'' But  where  the  agister  temporarily  left 
the  animals  in  the  charge  of  another,  and  during 
that  time  the  owner  took  possession,  the  lien  was 
not  lost.^^  It  is  generally  held  that  surrender  to 
anyone  not  in  the  employ  of  the  holder  of  the  lien 
voids  its  operation.    (§§  208,  233-240.) 

The  right  of  lien  may  be  lost  by  agreeing  to 

3G  Fishell  V.  Morris,  57  Conn.  Mo.  App.  1 ;  Kroll  v.  Ernst,  34 
547,  18  Atl.  717;  6  L.  R.  A.  82;  Neb.  482,  51  N.  W.  1032;  Car- 
Wright  V.  Waddell,  89  Iowa  dinal  v.  Edwards,  5  Neb.  36. 
350,  56  N.  W.  650;  Danforth  v.  37  WUlard  v.  Whinfield,  2 
Pratt,  42  Me.  50;  McPherson  Kas.  App.  53,  43  Pac.  314; 
First  National  Bank  v.  Barse  Weber  v.  Whetstone,  53  Neb. 
Live  Stock  Com.  Co.,  61  Mo.  371,  73  N.  W.  695. 
App.  143;  Powers  v.  Botts,  58 


110      ESSENTIALS  OF  VETERINARY  LAW 

give  credit.^^  Or  by  refusal  to  deliver  on  other 
grounds.^^  A  refusal  to  deliver  when  the  bailor 
tenders  the  amount  legally  covered  by  the  lien 
serves  as  a  waiver  of  the  lien.'**^  This  should  be 
remembered  in  attempting  to  hold  lien  for  past 
accounts,  which  the  court  might  consider  as  inde- 
pendent matters.  A  notice  to  the  owner  to  come 
and  take  his  horse  away  is  a  waiver  of  lien  for 
amounts  due  to  the  time  of  notice,  and  lien  would 
only  cover  subsequent  account.^  ^  But,  a  notice  to 
pay  charges  and  remove  would  not  be  a  waiver  of 
lien.  While  it  is  presumed  that  the  bailee  will  take 
such  care  of  the  animal  as  to  preserve  him  in  good 
condition,  and  that  might  necessitate  the  driving 
of  a  horse,  for  example,  any  use  of  the  animal 
beyond  what  is  necessary  for  the  good  keeping  of 
the  animal  may  be  held  to  vitiate  the  right  of 
lien.42 

83.  Lien  Not  a  Right  to  Sell.  The  lien  itself 
does  not  necessarily  give  the  right  of  sale.  ( §  §  238, 
241.)  Ordinarily  the  statutes  provide  for  an 
orderly  way  of  disposing  of  the  property,  generally 
by  advertisement  and  public  sale.  If  the  bailee 
sells  the  animal,  the  owner  may  sue  him  for  con- 
version, and  recover  the  market  value  of  the  ani- 
mal sold,  less  the  charges  to  the  time  of  sale.  All 
that  is  received  by  the  bailee  in  the  sale  of  bailed 
property,  more  than  is  covered  by  the  lien,  is  the 

38  McMaster  v.  Merrick,  41  4i  Hamilton  v.  McLoughlin. 
Mieh.  505.  145  Mass.  20. 

39  Hamilton  v.  McLoughlin,  ^2  Van  Zile,  Bailments  ami 
145  Mass.   20;    Mexal  v.  Dear-  Carriers,  87. 

born,  12  Gray,  336. 

■•oBusfielcl     V.     Wheeler,     14 
Allen    (Mass.),    139. 


COMPENSATION  111 

property  of  the  former  owner;  and  if  the  animal 
is  sold  for  less  than  market  value  the  owner  can 
recover  the  balance  from  the  bailee.  Provision 
may  be  made  in  the  contract  for  the  sale  of  prop- 
erty under  certain  circumstances,  and  stipulating 
how  it  shall  be  sold.  This  could  well  be  placed  in 
the  receipt  form  used  by  the  veterinarian  when  he 
receives  an  animal  for  board  or  for  treatment. 

The  bailee  of  animals  is  obliged  to  feed  them 
and  give  them  good  care.  To  preserve  the  lien, 
therefore,  the  veterinarian  must  continue  to  ex- 
pend money  in  the  keep  of  animals  held. 

84.  Actions  for  Recovery  of  Compensation. 
Owing  to  the  small  amount  of  the  bill,  actions  for 
the  recovery  of  compensation  for  professional 
services  are  ordinarily  brought  in  the  courts  of 
justices  of  the  peace.  The  proceedings  are  fre- 
quently conducted  in  a  very  informal  manner,  and 
without  attention  to  some  of  the  usages  of  English- 
speaking  courts  generally.  In  a  large  proportion 
of  the  cases  no  attorney  is  present  to  represent 
either  side.  In  case  of  appeal  to  higher  courts 
both  sides  are  represented  by  attorneys.  Exact 
usages  differ  in  different  sections  of  the  country, 
and  it  is  not  here  intended  to  "make  every  man 
his  own  lawyer,"  for  it  is  said  that  ''a  man  who 
pleads  his  own  case  has  a  fool  for  a  client."  It  is 
proper,  however,  to  give  certain  general  sugges- 
tions. 

In  an  action  for  services  the  plaintiff  must  show 
to  the  court  that  the  sei-vices  were  rendered,  that 
the  charge  is  reasonable,  and  that  the  defendant 
is  liable  for  the  payment  of  the  same. 

That  the  ser^dces  were  rendered  should  be  shown 


112      ESSENTIALS  OF  VETERINAEY  LAW 

by  his  books  of  original  entry.  Day-books,  or 
calling  lists  are  frequently  kept  by  physicians,  and 
probably  also  by  veterinarians,  in  such  hiero- 
glyphic characters  as  to  be  useless  in  court.  One 
mark  means  a  call,  another  means  an  office  pre- 
scription, another  some  surgical  service,  and  still 
another  means  an  obstetrical  case.  These  marks 
must  be  interpreted  to  the  court,  and  he  cannot  be 
sure  that  the  meaning  of  certain  characters  has 
not  been  changed. 

When  a  veterinarian  has  rendered  professional 
service  he  should  make  such  a  definite  record  that 
anyone  could  understand  what  he  means.  *'E  20 
S"  may  be  for  the  veterinarian's  use  enough  to 
remind  him  that  he  examined  so  many  sheep  for 
scab,  but  perhaps  before  the  suit  was  brought 
other  things  might  have  obscured  the  memory,  and 
'^S"  be  translated  *'shoats."  It  is  not  sufficient 
to  simply  record  a  call,  the  book  should  show  just 
what  was  done.  If  hogs  be  treated  for  protection 
from  hog  cholera,  the  record  should  show  how 
many,  and  whether  the  veterinarian  furnished  the 
virus,  or  the  owner  paid  for  it.  The  record  should 
show  with  some  definiteness  just  what  animals 
were  treated,  and  in  case  of  the  use  of  an  unusual 
amount  of  time  it  should  show  how  much.  Such 
a  record  is  of  positive  value  in  court.  Most  records 
made  by  medical  men  are  of  only  possible  value. 
The  record  may  be  made  upon  cards  for  filing,  or 
upon  loose  sheets  of  paper.  It  is  better  made  in 
books  which  will  show,  by  the  presence  of  other 
entries  before  and  after,  that  it  is  a  genuine  entry, 
and  was  not  made  up  for  the  trial. 

Reasonableness    of   charge   has    already    been 


COMPENSATION  113 

discussed.  To  show  the  liability  of  the  defendant 
it  will  be  necessary  to  produce  evidence  of  some 
act  of  the  defendant,  or  of  his  representative, 
which  demonstrates  that  the  service  was  rendered 
with  the  knowledge  and  concurrence  of  the  de- 
fendant. 

In  the  statement  of  the  case  the  veterinarian 
should  begin  with  the  declaration  that  he  is  a  vet- 
erinarian (holding  the  required  license,  or  duly 
registered,  if  either  be  required  by  law),  of  legal 
competence  in  the  practice  of  his  profession,  re- 
siding, and  doing  business  at  a  certain  place,  and 
that  on  certain  dates  specified  he  rendered  certain 
specified  services  for  the  account  of  the  defendant, 
and  that  for  said  services  he  demands  payment  of 
a  certain  reasonable  sum  of  money,  specified.  Ordi- 
narily the  court  will  take  judicial  notice  of  the  fact 
that  the  veterinarian  is  of  legal  standing  as  such ; 
that  is,  no  proof  of  these  points  will  be  required. 
If  the  defendant  raises  this  point,  in  argument  why 
the  court  should  so  take  judicial  notice  attention 
should  be  brought  to  the  fact  that  by  his  employ- 
ment of  the  plaintiff  (the  veterinarian),  the  de- 
fendant is  estopped  from  raising  this  objection, 
unless  he  presents  evidence  which  would  convince 
the  court  that  the  plaintiff  is  not  legally  qualified 
as  a  veterinarian.  When  such  evidence  is  pre- 
sented it  must  be  combatted  with  positive  evi- 
dence, and  where  a  license  is  required  the  license 
itself  must  be  produced.^^    (§37.) 

It  will  not  ordinarily  be  necessary  to  present  evi- 
dence of  due  care  and  diligence,  and  regularity  of 

*3  Greenleaf ,     Evidence,     79 ; 
Wharton,   Criminal   Law,   2434. 


114      ESSENTIALS  OF  VETERINARY  LAW 

practice.  Where  the  defendant  raises  these  ques- 
tions it  will  be  necessary  to  get  the  testimony  of 
others,  and  especially  of  experts.  In  a  suit  for 
damages  arising  from  malpractice,  in  which  a 
veterinarian  so  negligently  threw  a  horse  as  to 
rupture  his  diaphragm,  it  was  held  that  a  non- 
expert, who  had  frequently  seen  horses  hobbled 
and  thrown  during  an  experience  of  from  twelve 
to  thirteen  years,  was  competent  to  testify  as  to 
the  methods  used."*^ 

85.  The  Veterinarian  as  a  Witness.  Whether 
he  be  called  as  a  witness  of  fact,  or  for  his  expert 
opinion,  the  veterinarian  should  be  careful  to  make 
a  clear  distinction  between  fact  and  opinion.  Judg- 
ing from  certain  facts  which  he  recognizes  as 
symptoms  he  may  form  the  opinion,  or  diagnosis, 
that  a  horse  has  pneumonia;  but  mistakes  in  diag- 
nosis have  been  made  by  good  men.  It  is  there- 
fore taking  an  unnecessary  risk  for  him  to  assert, 
even  under  the  most  persistent  urging  of  a  cross- 
examining  attorney,  that  the  horse  has  pneumonia. 
It  is  a  peculiar  psychologic  fact  that  the  ignorant 
witness  is  often  the  one  who  is  most  positive  in 
stating  his  opinions  as  facts.  He  seems  to  attempt 
to  supply  his  lack  of  knowledge  by  vehement  as- 
sertions. A  skillful  questioner  may  often  lead 
such  an  one  into  making  the  most  ridiculous  state- 
ments in  regard  to  nonimportant  matters,  and 
thus  completely  upset  the  value  of  his  testimony 
upon  essential  points. 

The  witness  should  simply  tell  the  tnith.  Hf 
should  be  impartial.    So  far  as  possible  he  should 

4*  Staples  V.  Steed,  167  Ala. 
24],   52   So.   646. 


COMPENSATION  115 

avoid  technical  terms,  speaking  in  the  language 
of  the  court  and  jury,  so  that  they  may  clearly 
understand  him.  If  it  be  necessaiy  to  use  tech- 
nical terms  he  should  be  sure  himself  to  explain 
their  meaning  in  order  that  the  force  of  his  testi- 
mony may  be  known.  He  should  not  attempt  to 
impress  the  judge,  the  jury,  or  the  spectators  with 
his  great  knowledge  and  experience.  If  he  at- 
tempts this  he  is  quite  likely  to  find  himself  ''hoist 
with  his  own  petard."  He  blows  himself  up  like 
a  balloon,  which  the  opposing  counsel  takes  delight 
in  puncturing.  On  the  other  hand,  it  is  entirely 
right  that  the  facts  of  experience  be  presented  to 
the  court.  A  veterinarian  who  has  practiced  for 
ten  years,  especially  one  who  has  been  working 
under  the  directions  of  the  Department  of  Agri- 
culture, in  Oklahoma,  is  much  more  likely  to  know 
about  the  various  phases  of  the  Texas  cattle  fever 
than  one  who  has  been  limited  in  experience  to 
private  practice  in  New  England  or  northern  New 
York. 

86.  Duty  to  Prepare.  No  professional  man 
should  go  upon  the  witness  stand  to  testify  as  to 
a  matter  pertaining  to  his  profession  without  tak- 
ing the  precaution  to  see  that  he  is  well  posted, 
according  to  the  most  recent  knowledge  of  the  pro- 
fession. The  veterinarian  should  be  familiar  with 
the  approved  means  of  diagnosis,  and  with  the 
later  ideas  in  pathology,  pertaining  especially  to 
that  particular  injury  or  disease  which  may  be  a 
subject  of  controversy,  either  directly  or  indi- 
rectly. It  is  an  easy  matter  for  an  experienced 
laAvyer,  after  a  few  hours  reading  of  an  approver! 
textbook  of  medicine  or  surgerv,  to  make  tlio  aver- 


116      ESSENTIALS  OF  VETERINAEY  LAW 

age  medical  witness  appear  far  more  ignorant  than 
he  really  is.  One  well  posted  witness  is  worth 
several  men  with  *' reputations, "  but  who  show 
inexactness  in  examination.  Where  a  witness 
guesses  at  an  answer  he  is  very  likely  to  greatly 
weaken  the  force  of  his  testimony.  If  he  does  not 
know  he  should  say  so,  and  then  when  he  says  a 
thing  it  will  be  presumed  that  he  knows  that  which 
he  pretends  to  know. 

It  often  happens  that  a  lawyer  gets  from  tlio 
witness  an  admission  of  a  certain  fact,  and  then 
asks  if  some  other  fact  is  not  dependent  upon  the 
acceptance  of  the  first.  While  such  a  sequence 
might  be  common,  or  very  usual,  it  is  unsafe  for 
the  witness  to  give  an  unqualified  approval.  In 
such  cases  the  expression  "Not  necessarily" 
proves  often  exceedingly  valuable. 

87.  Expert  Testimony.  Justice  frequently  de- 
mands that  special  evidence  be  given,  of  a  techni- 
cal nature,  and  that  the  opinion  of  those  competent 
to  decide  as  to  technical  points  be  given  to  the  jury 
to  enable  the  latter  to  arrive  at  an  equable  deci- 
sion. Not  all  technical  witnesses,  testifying  as  to 
professional  matters,  are  the  givers  of  "expert 
testimony,"  irrespective  of  their  competency  to 
give  such  expert  judgments  or  opinions.  "The 
value  of  professional  services  is  not  a  question  of 
science  to  be  proved  by  expert  testimony. ' '  ^^  Such 
a  matter  is  a  question  of  fact,  to  be  determined  by 
usage  and  circumstances.  Therefore,  it  has  been 
held  that  a  person  who  is  not  an  attorney  is  com- 
petent to  prove  the  value  of  an  attorney's  serv- 

4s  Walker    v.    Cook,    33    111. 
App.  561. 


COMPENSATION  117 

ices.*^  It  is  to  be  presumed,  however,  that  attor- 
neys would  be  much  better  able  to  testify  as  to  the 
facts  of  usage  than  the  layman,  and  for  that  reason 
it  has  also  been  held  that  laymen  are  not  compe- 
tent witnesses  in  such  a  matter.^'^  Also,  it  has  been 
held  that  a  defendant,  if  not  an  attorney,  is  incom- 
petent as  a  witness  as  to  the  value  of  a  lawyer's 
services.^^  It  has  also  been  held  that  the  usage  in 
the  ordinary  place  of  business  of  a  consultant, 
rather  than  that  where  services  are  rendered, 
should  govern;  for  in  the  absence  of  an  agreement 
beforehand  the  consultant  has  a  right  to  expect 
to  receive  his  usual  fee.  So,  "A  lawyer  residing 
in  another  state,  where  another  lawyer  resides, 
is  competent  to  testify  as  to  the  value  of  the  legal 
services  rendered  by  the  latter,  rather  than  an  at- 
torney living  in  such  latter  state. ' '  ^^ 

88.  Definition  and  Scope  of  Expert  Testimony. 
The  following  rules,  taken  from  ' '  The  Law  of  Ex- 
pert and  Opinion  Evidence,"  by  Lawson  (1900), 
give  the  facts  so  clearly  and  concisely  that  they 
are  here  quoted. 

''Rule  35.^°  An  expert  is  a  person  having  spe- 
cial knowledge  and  skill  in.  the  particular  calling 
to  which  the  inquiry  relates. ' ' 

''Rule  36.^^  Therefore,  to  render  the  opinion 
of  a  witness  admissible  on  the  ground  that  it  is 
the  opinion  of  an  expert,  the  witness  must  have 

46  Hart  V.  Vidal,  6  Cal.  56.  49  Stanberry  v.  Diekerson,  35 

47  McNiel    V.     Davidson,    37  Iowa  493. 
Ind.  336.  60  p.  229. 

48  Howell  V.  Smith,  108  Mich.  si  p.  231. 
350,  66  N.  W.  218. 


118      ESSENTIALS  OF  VETERINARY  LAW 

special  skill  in  the  subject  concerning  which  his 
opinion  is  sought  to  be  given. ' ' 

"Rule  37.^-  But  the  opinion  of  an  expert  is 
inadmissible  where  the  subject  is  not  one  of  special 
skill  or  knowledge,  but  of  general  observation  or 
experience,  which  can  be  better  answered  by  per- 
sons in  another  calling,  or  is  upon  a  question  which 
the  court  or  jury  can  themselves  decide  on  the 
facts.'' 

' '  Rule  38.^^  The  opinion  of  an  expert  on  a  ques- 
tion of  law,  or  ethics,  or  on  matters  of  mere  specu- 
lation, is  inadmissible." 

"Rule  39.^*  An  expert  may  be  qualified  by 
study  without  practice,  or  by  practice  without 
study.  But  mere  observation  without  either  is  in- 
sufficient." 

"Rule  43.^^  The  qualification  of  a  w^itness  as 
an  expert  is  a  question  for  the  trial  court,  whose 
decision  is  not  generally  reviewable  on  appeaL" 

Opinions  of  experts  are  incompetent  unless  ques- 
tions of  skill  or  science  are  involved.^*^  Before  giv- 
ing expert  testimony  the  standing  of  the  witness 
as  an  expert  should  be  presented  to  the  court.  The 
testimony  of  a  veterinary  witness  must  be  judged 
very  differently  according  to  whether  his  standing 
as  an  expert  comes  as  a  result  of  years  of  practice, 
without  previous  special  education,  or  from  recent 
study  in  the  laboratory  and  with  books.  Some- 
times perhaps  one,  and  sometimes  perhaps  the 
other  should  be  considered  the  more  competent, 
according  to  the  point  involved.    The  court  and 

52  p.  238.  55  p.  276. 

53  p.  242.  56  Eosenheiiti      v.      American 
5«p.  246.                                            Ins.  Co.,  3n  Mo.  230. 


COMPENSATION  119 

jury  must  therefore  know  before  hearing  his  ex- 
pert opinion  how  he  claims  his  standing,  in  order 
to  know  how  to  estimate  his  statements.  No 
amount  of  general  experience  as  a  veterinarian 
would  qualify  a  person  ignorant  of  bacteriology  to 
testify  as  to  an  animal  disease  when  bacteriologic 
questions  are  involved.  A  horse  may  be  appar- 
ently sound,  and  yet  for  years  be  a  carrier  of  the 
Bacillus  mallei,  and  thus  be  the  cause  of  the  loss 
of  much  stock.  A  veterinarian  ignorant  of  bac- 
teriology should  not  be  considered  competent  to 
testify  as  an  expert  in  a  case  brought  to  recover 
damages  for  the  spread  of  glanders  from  that 
horse.  ''A  physician,  called  as  an  expert,  cannot 
be  allowed  to  testify  as  to  his  opinion  whether  a 
certain  plaster,  which  he  has  not  examined,  was 
poisonous ;  his  opinion  being  based  upon  his  experi- 
ence, study,  and  facts  personally  known  to  him,  all 
of  which  were  not  in  evidence. ' '  ^"^ 

Where  a  physician,  testifying  with  regard  to  a 
broken  leg,  has  minutely  described  the  nature  of 
the  fracture,  he  may  oive  his  opinion  as  to  the  posi- 
tion of  the  leg  at  the  time  of  the  accident,  and  the 
point  from  which  the  blow  came.^^  An  expert 
may  give  the  grounds  and  reasons  of  his  opinion 
in  his  examination  in  chief,  as  well  as  the  opinion 
itself.59 

When  a  medical  witness,  in  an  action  upon  a 
warranty  of  a  horse,  had  stated  that  he  had  read 

57  Burns     v.     Barenfield,     84  59  Lewiston  Steam  Mill  Co.  v. 
Ind.  43.  Androscoggin  Water  Power  Co., 

58  Johnson  v.  Steam  Gauge  &  78  Me.  274,  4  Atl.  555 ;  Keith  v. 
Lantern  Co.,  146  N".  Y.  152,  40  Lothrop,  64   Mass.  453. 

N.    E.    773,    affirming    72    Hun 
535,  25  N.  Y.  Sup.  639. 


120      ESSENTIALS  OF  VETERINARY  LAW 

various  standard  authors  on  the  subject  of 
diseases,  and  had  given  his  own  opinion  in  respect 
to  the  character  of  the  disease  of  which  the  horse 
died,  it  was  proper  to  ask  him  for  his  best  medical 
opinion  thereon  according  to  the  best  authority.^" 
In  an  action  for  breach  of  warranty  in  the  sale 
of  a  stallion,  where  the  defect  complained  of  is 
a  spavin,  testimony  of  expert  witnesses  is  admis- 
sible to  show  that  the  defect  is  subject  to  be  trans- 
mitted in  breeding.^^     (§  206.) 

89.  Compensation  as  Expert.  It  is  quite  com- 
mon for  those  needing  the  service  of  experts  in 
American  courts  to  make  special  arrangements  for 
the  pay  for  such  services.  Such  a  previous  under- 
standing is  very  much  the  better  way,  but  it  is  not 
always  made,  and  therein  comes  a  new  complica- 
tion. In  fact,  a  large  proportion  of  expert  wit- 
nesses do  not  know  what  rights  they  may  have; 
and  in  consequence  some  have  been  committed  to 
jail  for  too  great  insistence  upon  what  they  con- 
sidered their  rights.  Although  some  courts,  and 
one  state,  have  affirmed  the  right  of  the  court  to 
call  for  the  services  of  an  expert  witness,  whether 
he  wishes  to  serve  or  not,  it  is  generally  recog- 
nized that  his  services  as  an  expert  are  at  his  own 
disposal,  even  though  there  may  be  some  question 
as  to  his  right  to  special  compensation.  In  other 
words,  it  rests  with  the  witness  whether  or  not 
he  shall  become  an  expert  witness  in  the  case  be- 
fore the  court. 

A  physician  cannot  be  compelled  to  make  a 
post  mortem  examination,  according  to  a  Texas 

60  Pierson  v.  Hoag,  47  Barb.  ei  Fitzgerald     v.     Evans,    49 

243.  Minn.  541,  52  N.  W.  143. 


COMPENSATION  121 

decision;  but  having  made  such  an  examination 
he  becomes  a  witness  of  fact,  and  may  be  com- 
pelled to  testify  as  to  the  result  of  the  examination 
made  by  him.'^^  jj^  made  his  decision  as  to  testi- 
fying when  he  made  the  examination. 

We  have  previously  said  that  a  witness  should 
be  impartial.  Too  frequently  both  witness  and 
spectators  seem  to  imagine  that  an  expert,  like 
an  attorney,  is  hired  to  get  one  side  out  of  trouble. 
Theoretically  this  should  not  even  be  true  of  the 
lawyer.  He  is  an  officer  of  the  court  to  secure 
justice;  but  since  he  is  opposed  by  contending 
counsel,  justice  can  only  be  secured  when  each  side 
is  presented  in  its  strongest  color.  This  excuse 
does  not  avail  for  biased  testimony,  whether  of 
fact  or  of  expert  opinion.  The  witness  is  sworn 
to  tell  the  truth.  A  contract  with  an  expert  wit- 
ness for  compensation,  conditional  on  the  success 
of  the  suit  in  which  he  is  to  testify,  is  void,  as 
against  public  policy.''^  It  should  be  sufficient 
grounds  foir  impeaching  the  expert's  entire  tes- 
timony, for  it  throws  doubt  upon  the  honesty  of 
his  opinion,  and  raises  a  suspicion  that  there  may 
have  been  imposition  upon  the  court  of  a  plea  for 
a  client,  disguised  as  evidence.  It  is  such  unlawful 
abuse  of  privilege  which  has  tended  to  bring  re- 
proach upon  the  name  of  expert  testimony  in 
American  courts. 

An  agreement  by  one  to  go  into  court  at  a  future 
day  and  testify  as  an  expert  in  regard  to  a  matter 
which  he  had  examined  as  a  civil  engineer  (or  as 
a  veterinarian),  is  sufficient  consideration  for  a 

62  Summers  v.  State,  5  Tex.  es  Pollak      v.      Gregory,       9 

App.  365.  Bosw.    116. 


122      ESSENTIALS  OF  VETERINARY  LAW 

promise  to  pay  a  reasonable  compensation  in  addi- 
tion to  statutory  fees.''* 

Where  there  has  been  no  previous  arrangement 
with  regard  to  compensation  for  expert  testimony, 
there  has  been  some  disagreement  among  the  de- 
cisions. In  the  English  courts  it  is  generally 
agreed  that  extra  compensation  may  be  taxed.*'' 
In  the  case  of  Webb  v.  Page  it  was  said,^^  ' '  There 
is  a  distinction  between  the  case  of  a  man  who 
sees  a  fact,  and  is  called  to  prove  it  in  a  court  of 
law,  and  a  man  who  is  selected  by  a  party  to  give 
his  opinion  on  a  matter  on  which  he  is  peculiarly 
conversant  from  the  nature  of  his  em^Dloyment  in 
life.  The  former  is  bound,  as  a  matter  of  public 
duty,  to  speak  to  a  fact  which  happens  to  have 
fallen  within  his  own  knowledge;  without  such 
testimony  the  course  of  justice  must  be  stopped. 
The  latter  is  under  no  such  obligation ;  there  is  no 
such  necessity  for  his  evidence,  and  the  party  who 
selects  him  must  pay  him. ' '  In  such  opinion  many 
American  decisions  concur.^^ 

On  the  other  hand  it  has  several  times  been  held 
that  the  expert  is  not  entitled  to  extra  compensa- 
tion.^^ Perhaps  strictly  there  may  be  no  essen- 
tial disagreement  from  a  legal  point  of  view  be- 

64  Barrus  v.  Phaneuf ,  166  t^s  Summers  v.  State,  5  Tex. 
Mass.  123,  44  N.  E.  141.  App.  365;  Ex  parte,  Dement,  53 

65  Batley  v.  Kynoek,  L.  E.  20  Ala.  389 ;  State  v.  Teipner,  36 
Eq.  Cas.  632 ;  In  re,  Laffitte,  Minn.  535 ;  32  Minn.  678 ;  Lari- 
L.  E.  20  Eq.  Cas.  650.  mer  County  Commrs.  v.  Lee,  3 

«o  1  C.  &  K.  23.  Col.    App.    177,    32    Pac.    841 ; 

07  Buchman  v.  State,  59  liid.  Flinn    v.   Prairie   Co..   60   Ark. 

1,  26  Am.  E.  75;  Dills  v.  State,  204,   29   S.   W.   459;    Dixon   v. 

59   Ind.   15;    In  re   Eoelker,    1  People,  168  111.  179. 
Sprague,   276;   U.   S.   v.  Howe, 
12  Cent.  L.  J.  193. 


COMPENSATION  123 

tween  these  apparently  conflicting  statements.  As 
we  remarked  above,  when  a  physician,  a  veterina- 
rian, or  other  expert,  makes  an  examination  to 
enable  him  to  give  expert  testimony,  as  by  per- 
forming a  post  mortem  examination,  he  becomes 
a  witness  of  fact,  and  as  such  can  be  compelled  to 
testify  without  extra  compensation.  However,  the 
party  requesting  a  veterinarian  to  examine  and 
treat  his  animals  is  thereby  putting  himself  under 
obligations  to  pay  a  reasonable  sum  for  the  serv- 
ices rendered;  and  the  reasonable  sum  must  de- 
pend upon  the  character  of  the  services  rendered. 
On  this  same  basis  the  man  who  is  asked  to  make 
an  examination  as  a  preliminary  to  giving  expert 
testimony  has  a  legal  right  to  expect  comiDensa- 
tion  for  his  services  as  an  expert.^^  Though  this 
compensation  may  not  be  included  in  the  fees 
taxed  by  the  court  in  which  the  expert  evidence 
has  been  given,  apparently  the  witness  may  have 
therein  ground  for  action  against  the  person  en- 
gaging his  services,  where  there  is  no  law  to  the 
contrary.  It  seems  reasonable,  also,  that  a  dis- 
tinction should  be  made  between  cases  in  which 
the  community  needs  the  services  of  an  expert  in 
criminal  prosecutions,  and  those  in  which  his  serv- 
ices are  required  for  the  benefit  of  parties  engaged 
in  civil  suits. 

Several  states  have  enacted  statutes  providing 
that  witnesses  called  to  testify  only  on  an  opinion, 
founded  upon  special  study  or  experience,  shall 
receive  additional  compensation  to  be  fixed  by  the 
court.     Such  statutes  are  found  in  Iowa,  North 

69  Barrus     v.     Phaneuf,     166 
Mass.  123,  44  X.  E.  141. 


124      ESSENTIALS  OF  VETERINARY  LAW 

Carolina,  Ehode  Island,  Louisiana,  Minnesota, 
North  Dakota,  and  Wyoming,  and  they  should  be 
found  in  all  the  states. 

Some  years  ago  in  a  criminal  case  in  Indiana  a 
physician  refused  to  give  his  expert  opinion  until 
he  should  be  assured  of  extra  compensation.  The 
trial  court  committed  him  for  contempt.  Upon 
appeal  to  the  supreme  court  the  decision  of  the 
lower  court  was  reversed.  This  carefully  consid- 
ered opinion  is,  perhaps,  the  best  of  our  American 
decisions.    In  it  the  court  said :  '^° 

' '  While  a  physician  or  surgeon  could  be  required 
to  attend  as  a  witness  to  facts  without  other  com- 
pensation than  that  provided  by  law  for  other  wit- 
nesses, yet  he  could  not  be  required  to  testify  as 
to  his  professional  opinion  without  compensation 
of  a  professional  fee.  The  professional  knowledge 
of  an  attorney  or  physician  is  to  be  regarded  in  the 
light  of  property,  and  his  professional  services 
are  no  more  at  the  mercy  of  the  public,  as  to  re- 
muneration, than  the  goods  of  the  merchant,  or  the 
crops  of  the  farmer,  or  the  wares  of  the  mechanic. ' ' 

This  case  excited  so  much  comment  in  the  state 
that  the  legislature  enacted  a  statute,  which,  while 
it  is  law,  and  binding  upon  the  citizens  of  the  state, 
seems  to  be  unworthy  of  so  great  a  commonwealth. 
This  statute  is  as  follows :  '^^ 

'*A  witness  who  is  an  expert  in  any  art,  science, 
trade,  profession,  or  mystery  may  be  compelled  to 
appear  and  testify  to  an  opinion  as  such  expert,  in 
relation  to  any  matter,  whenever  such  an  opinion 
is  material  evidence  relevant  to  an  issue  on  trial 

70  Buchman  v.  State,  59  Ind.  7i  528,      Burns '      Annotated 

1,  26  Am.  R.  75.  Statutes    (1914). 


COMPENSATION  125 

before  a  court  or  jury  without  payment  or  tender 
of  compensation  other  than  the  per  diem  and  mile- 
age allowed  by  law  to  witnesses,  under  the  same 
rules  and  regulations  by  which  he  can  be  com- 
pelled to  appear  and  testify  to  his  knowledge  of 
facts  relevant  to  the  same  issue. ' ' 


PART  III 

PERTAINING  TO  GOVERNMENTAL 
CONTROL 


CHAPTER  VI. 

GOVEKNMENTAL  SERVICES. 


95.  The   Veterinarian  as   an 

Officer. 

96.  Liability  of  Officers. 

97.  Officers    with    Discretion 

Cannot  Be  Coerced. 

98.  Arbitrary      Action     Not 

Discretion. 

99.  Authority     Limited     by 

Jurisdiction. 

100.  Authority  Determined  by 

Legislation. 

101.  Invalid   Act   Is    No   De- 

fense for  Officer. 

102.  Quarantine. 

103.  Quarantine      Does      Not 

Depend   upon   Statute. 

104.  Authority      Cannot      Be 

Delegated. 


§  105.  What  Diseases  Quaran- 
tinable. 

§  106.  Methods    in    Quarantine. 

§  107.  Quarantine  Eegulations 
Should  Be  Published. 

§  108.  Diagnosis. 

§  109.  Jurisdiction  in  Quaran- 
tine. 

§  110.  Quarantine  Versus  Com- 
merce. 

§  111.  Destruction  of  Property. 

§  112.  Personal  Liability  for 
Infectious  Disease. 

§  113.  Law  Versus  Policy. 

§  114.  Appraisement. 

§  115.  State  and  National  Offi- 
cers, at  Same  Time. 


95.  The  Veterinarian  as  an  Officer.  Veterina- 
rians are  frequently  occupied  in  governmental 
positions  for  the  nation,  state,  or  city,  and  such 
services  are  daily  becoming  more  common  and 
more  necessary.  As  a  rule,  these  duties  are  per- 
formed by  veterinarians  as  employees,  rather  than 
as  officers.  For  a  discussion  of  the  relative  rights 
and  duties  of  officers  and  employees  the  reader  is 
referred  to  Chapter  X  of  my  Public  Health.  It 
is  necessary  that  the  person  entering  upon  govern- 
mental work  should  have  a  clear  idea  of  the  limits 
of  his  authority,  as  well  as  a  knowledge  of  the 

129 


130      ESSENTIALS  OF  VETERINARY  LAW 

liabilities  to  which  he  exposes  himself.  An  error 
of  the  representative  of  a  city  government  may 
possibly  involve  the  city  in  a  liability ;  for  the  city 
is  a  coiporation  which  may  be  sued.  Exactly  the 
same  kind  of  an  error  by  one  employed  by  the 
state  or  nation  would  not  involve  the  liability  of 
either  state  or  nation,  for  they  are  supposed  to 
do  no  wrong,  and  therefore  they  cannot  be  sued. 
But  if  a  man  occupying  the  position  of  an  officer 
or  employee  of  the  state  or  nation  does  an  act 
which  is  wrong,  in  so  far  he  is  really  a  private 
wrongdoer,  just  like  any  other,  and  his  official 
position  does  not  protect  him  from  suffering  the 
penalty.  If  any  one  has  been  injured  by  his  un- 
lawful act,  civil  suit  may  be  brought  against  him. 
It  does  not  matter  that  he  acted  in  good  faith, 
that  he  supposed  that  he  was  within  his  authority, 
or  that  he  thought  his  act  for  the  common  good. 
Relying  upon  the  purity  of  his  motives,  he  finds 
that  good  intentions  pave  the  way  to — trouble. 

It  is  the  duty  of  a  public  officer  or  employee  to 
know  what  he  is  doing,  and  that  his  act  is  within 
his  legal  power.  Intentions  don't  count.  Impres- 
sions are  misleading.  Knowledge  is  important. 
This  knowledge  is  not  difficult  to  obtain.  It  is 
within  easy  reach,  but  the  trouble  is  that  too 
frequently  the  officer  is  content  witli  certain  gen- 
eral ideas,  very  loosely  comprehended,  until  he 
is  suddenly  brought  into  court  to  suffer  for  his 
well  intentioned  misdeeds.  Very  frequently  it  is 
more  the  manner  in  which  a  thing  has  been  done, 
than  the  thing  itself,  which  is  objectionable. 

96.  Liability  of  Officers.  Whatever  is  required 
of  an  officer  by  law  should  be  done,  and  if  he  fails 


GOVERNMENTAL  SERVICES  131 

to  perform  the  act  lie  may  be  punished.  But  where 
there  is  discretion,  the  officer  may  do  anything 
within  that  discretion.^  The  fact  that  an  officer 
is  given  discretion  in  the  performance  of  his  duties 
does  not  imply  that  he  can  do  as  he  pleases.  It  is 
essential  that  the  act  be  the  outcome  of  personal 
investigation  and  consideration,  and  it  must  be 
based  upon  reason.  If  the  act  be  not  the  outcome 
of  such  examination  and  consideration,  or  if  it 
be  the  expression  of  individual  will,  not  clearly 
dependent  upon  reason,  it  will  be  considered  as 
arbitrary.  No  arbitraiy  act  is  authorized  in 
American  law.^  When  an  officer  is  vested  with 
discretionary  authority  he  is  personally  liable  for 
an  abuse  of  that  authority.^  "It  follows  that 
boards  of  health  may  not  deprive  any  person  of 
his  liberty,  unless  the  deprivation  is  made  to 
appear,  by  due  inquiry,  to  be  reasonably  neces- 
sary to  the  public  health. ' '  *  The  case  of  Kirk  v. 
Wyman,  just  cited,  was  one  in  which  it  was  held 
that  the  board  of  health  did  not  have  authority 
to  establish  such  a  quarantine  as  was  attempted 
in  a  case  of  anesthetic  leprosy,  as  the  disease  was 
very  slightly  contagious.  A  board  of  health 
ordered  the  destruction  of  a  glandered  horse,  but 
they  had  to  respond  in  personal  damages  because 
the  court  decided  that  the  evidence  presented 
failed  to  show  that  the  horse  was  really  suffering 
with  glanders.^  In  a  similar  manner  a  health 
officer  was  held  personally  liable  for  the  destruc- 

1  Public  Health,  270,  271.  *  Kirk   v.   Wyman,   83   S.   C. 

2  Public  Health,  273.  372,  65  S.  E.  387. 

3  State  V.  Yopp,  97  N.  C.  477,  5  Miller  v.  Horton,  152  Mass. 
2  S.  E.  689.  540. 


132      ESSENTIALS  OF  VETERINARY  LAW 

tion  of  cattle  which  were  in  fact  not  a  nuisance, 
nor  a  cause  of  sickness  endangering  public  health, 
but  were  mistakenly  adjudged  by  him  so  to  be. 
This  was  not  an  error  in  judgment,  but  it  was  the 
result  of  too  slight  examination  into  the  facts, 
and  he  thereby  exceeded  his  authority.^  In 
another  instance  a  professor  in  a  normal  school 
was  a  member  of  a  board  of  health  and  he  found 
that  wood  alcohol  was  contained  in  the  vanilla 
flavoring  in  a  certain  bakery.  He  published  an 
article  in  a  local  paper  in  which  he  referred  to 
''The  recent  finding  of  wood  alcohol  in  the  so- 
called  vanilla  used  in  one  of  our  local  bakeries," 
and  after  saying  that  good  vanilla  costs  about 
$12.00  per  gallon,  wholesale,  asked  "What  can 
one  expect  for  $2.75?"  He  did  not  mention  the 
name  of  the  baker,  though  he  was  easily  identified. 
The  professor  was  found  guilty  of  libel,  on  the 
ground  that  the  article  was  not  a  plain,  ofificial, 
statement  of  facts,  but  that  it  was  evidently  in- 
spired by  a  vindictive  spirit.  It  intimated  that 
the  baker  bought  his  vanilla  for  $2.75  per  gallon; 
but  the  baker  showed  that  he  paid  $4.00  per 
gallon."^ 

Where  the  officer  of  health  keeps  within  his 
authority  neither  he,  nor  the  city,  nor  the  state, 
nor  the  nation  can  be  held  liable  in  damages  to 
those  who  may  be  injured  through  his  act.  But 
when  he  exceeds  his  authority  he  is  legally  re- 
garded as  no  longer  an  officer,  and  he  must 
personally  bear  the  consequences.  "Absence  of 
bad  faith  can  never  excuse  a  trespass,  though  the 

G  Lowe   V.    Conroy,    120   Wis.  ^  Hubbard     v.      Allyn,      200 

151,  97  N.  W,  942.  Mass.  166,  86  N.  E.  356. 


GOVERNMENTAL  SERVICES  133 

existence  of  bad  faith  may  aggravate  it.  Every- 
one must  be  sure  of  his  legal  right  when  he  invades 
the  possession  of  another."^ 

Because  a  municipality  is  not  liable  for  the 
acts  of  its  representatives  in  preser\dng  the  pub- 
lic health,  and  because  an  excess  on  the  part  of 
the  official  exposes  him  to  personal  liability,  it 
has  even  been  held  that  where  the  officer  has  been 
actuated  by  worthy  motives,  and  has  acted  for 
the  common  good,  as  he  saw  it,  if  he  shall  have 
exceeded  his  authority,  and  shall  have  been 
assessed  damages,  he  must  pay  those  damages 
personally,  and  the  municipality  may  not  law- 
fully reimburse  him.^ 

97.  Officer  with  Discretion  Cannot  Be  Coerced. 
A  duty  which  is  coupled  with  discretion  implies 
the  free  exercise  of  judgment.^*'  Such  an  officer, 
therefore,  cannot  lawfully  be  coerced  in  making  his 
decision,  nor  to  act  contrary  to  his  opinion  when 
formed.  The  courts  cannot  force  such  an  officer 
to  take  a  certain  line  of  action."  If,  under  the 
stress  of  fear,  or  intimidation,  such  an  officer 
should  adopt  a  certain  line  of  action  he  must  bear 
the  responsibility  of  such  action.  If  his  act  be 
shown  to  be  without  the  scope  of  his  authority,  or 
contrary  to  the  provisions  of  law,  he  may  be  held 
personally  liable  for  injuries  resulting  from  his 


8  Cubit  V.  O'Dett,  51  Mich.  98;  Eobinson  v.  Eohr,  73  Wis. 
347    (per  Cooley,  J.).  436. 

9  Kempster  v.  Milwaukee,  79  lo  Public  Health,  271,  274. 
N.  W.  743,  97  Wis.  343;  Law-  n  Seymour  v.  U.  S.,  2  App. 
rence    v.    McAlvin,    109    Mass.  D.  C.  240. 

311;    Uren   v.    Walsh,   57   Wis. 


134      ESSENTIALS  OF  VETERINARY  LAW 

act.^^    A  superior  officer  is  not  ordinarily  liable 
for  the  torts  of  his  inferior.  ^^ 

98.  Arbitrary  Action  Not  Discretion.  Discre- 
tion implies  the  use  of  reason,  not  of  will.  If  the 
act  is  not  based  ui3on  a  clear  use  of  reason  it  will 
be  considered  as  arbitrary,  and  the  officer  will  be 
held  personally  liable  for  any  harm  which  may 
result.  ^^  This  may  be  veiy  important  for  official 
veterinarians  to  remember.  Under  a  general 
authority  to  quarantine  animals  for  an  infectious 
disease,  and  to  kill  those  which  it  may  be  neces- 
sary to  destroy  to  restrict  an  infectious  disease 
from  spreading,  it  would  probably  be  held  neces- 
sary to  show  that  the  animals  killed  were  in  fact 
a  danger  to  the  community.  ^^  This  might  excuse 
the  slaughter  of  animals  actually  diseased,  and 
those  animals  exposed  to  the  infection,  in  which 
the  disease  had  not  as  yet  been  demonstrated. 
Since  many  diseases  develop  in  the  affected  ani- 
mals an  immunity  to  future  attacks,  in  such 
animals  as  had  passed  through  the  disease  and 
recovered,  it  might  ])e  presumed  that  such  an 
immunity  had  removed  the  danger.  If  such  ani- 
mals were  ordered  killed,  as  the  result  of  a  hys- 
terical fear,  rather  than  from  scientific  knowledge, 
the  officer  so  ordering  might  be  held  personally 
liable  for  the  full  value  of  animals  thus  unneces- 
sarily destroyed. 

99.  Authority  Limited  by  Jurisdiction.  It  is 
very  evident  that  a  person,  a  corporation,  or  a 

12  Public  Health,  360,  365,  366;  State  v.  Yopp,  97  N.  C. 
366.  477. 

I?'  Public  Health,  367.  i'>  Public  Health,  201. 

14  PxjBLic  Health,  273,  365, 


GOVERNMENTAL  SERVICES  135 

governmental  body,  cannot  grant  that  which  the 
grantor  does  not  possess.  In  other  words,  the 
officer  has  no  greater  range  of  authority  than  the 
body  which  he  represents.  Under  appropriate 
legislation,  therefore,  a  city  inspector,  a  state 
inspector,  and  an  inspector  connected  with  the 
Bureau  of  Animal  Industry  in  the  national  De- 
partment of  Agriculture  would  have  very  different 
powers  in  the  same  case.  Suppose  that  they  met 
upon  a  dairy  farm  which  sent  its  products  to  a 
neighboring  city  in  the  same  state.  The  national 
representative  would  have  no  authority  in  the 
matter  until  the  dairyman  attempted  to  send  his 
products  out  of  the  state,  though  he  discovered 
that  there  was  typhoid  fever  upon  the  farm,  and 
that  insufficient  care  was  taken  to  prevent  con- 
tagion. The  city  inspector  would  have  no  direct 
authority  in  the  case,  but  he  could  suggest  certain 
changes  in  operation,  and  in  case  his  suggestions 
Avere  not  accepted  and  acted  upon  he  could  order 
the  exclusion  of  tlie  products  of  the  farm  from 
his  city.  This  would  still  leave  the  farmer  at  lib- 
erty to  sell  to  other  communities.  The  state  offi- 
cial would  have  the  authority  to  order  such 
changes  in  operation  as  reason  and  law  dictated, 
and  in  the  absence  of  complete  obedience  he  might 
put  a  quarantine  upon  the  farm. 

In  the  case  above  supposed,  the  city  inspector 
has  no  authority  because  the  farm  is  outside  of 
his  jurisdiction,  though  it  is  necessary  for  him 
to  go  beyond  his  territorial  jurisdiction  to  make 
his  inspections.  His  authoritative  jurisdiction  is 
limited  to  the  city  boundaries.  The  authority  of 
the  nation  is  found  in  its  power  to  regulate  inter- 


136      ESSENTIALS  OF  VETERINARY  LAW 

state  and  foreign  commerce.  It  has  no  authority 
in  purely  internal  affairs  in  the  individual  states. 
The  state  official  has  full  authority,  provided  the 
state  has  enacted  laws  which  grant  him  the 
authority. 

The  rules  of  the  Bureau  of  Animal  Industry  of 
the  Department  of  Agriculture,  organized  by  Act 
of  Congress,  May  29,  1884,^^  known  as  the  "Ani- 
mal Industry  Act,"  for  the  suppression  of  con- 
tagious disease  among  domestic  animals,  have  not, 
apart  from  the  action  of  a  state,  any  binding  force 
upon  the  state."  In  the  case  of  a  contagious  dis- 
ease in  the  Chicago  Stockyards  the  Chicago  au- 
thorities, and  the  Illinois  authorities  might  enforce 
a  local  quarantine.  The  national  representative 
could  not  do  this,  but  in  case  he  considered  the 
act  necessary  he  might  quarantine  the  whole  state 
of  Illinois.  In  case  that  a  Chicago  inspector  found 
that  infected  dairy  products  were  being  shipped 
from  farms  in  Wisconsin  to  Chicago,  he  w^ould 
have  no  legal  authority  to  stop  those  products 
until  they  reached  the  city  limits.  The  state  rep- 
resentative could  stop  them  at  the  state  line. 
Neither  could  exert  authority  within  Wisconsin. 
On  the  other  hand,  before  the  goods  left  the  farm, 
when  they  were  marked  for  shipment  to  Chicago 
destinations,  the  national  official  could  step  in 
and  seize  the  goods,  for  interstate  commerce  be- 
gins as  soon  as  the  goods  are  prepared  for  ship- 
ments^ 

16  C.  60,  23  St.  31,  18  Public  Health,  238. 

17  Eshleman  v.  Union  Stock- 
yards Co.,  222  Pa.  20,  70  Atl. 
899. 


GOVERNMENTAL  SERVICES  137 

National  authority  is  specified  in  the  Constitu- 
tion, and  so  far  as  concerns  veterinarians  it  is 
practically  limited  to  the  control  of  interstate  and 
foreign  commerce.  The  authority  of  the  city  is 
only  such  as  has  been  given  it  by  the  state,  and 
the  city  official  has  no  authority  outside  of  the 
city  limits.  The  state  has  supreme  police  power 
over  all  matters  within  its  boundaries,  according 
to  the  ordinary  interpretation  of  the  Constitu- 
tion. 

100.  Authority  Determined  by  Legislation. 
Except  possibly  in  the  case  of  a  very  few  of  the 
principal  officers,  the  duties  and  authority  of  all 
governmental  representatives  are  determined  by 
enactment.  The  enactment  may  be  a  constitution, 
a  state  legislative  act,  or  a  city  ordinance.  In 
each  case  the  act  is  found  in  print  or  engrossed, 
and  its  provisions  can  be  ascertained.  The  officer 
or  employee  should  therefore  become  familiar 
with  the  exact  wording  of  all  enactments  pertain- 
ing to  his  position.  An  act  duly  passed  will  be 
presumed  to  be  law  until  it  has  been  declared  not 
valid.  But  the  law  may  have  been  so  declared, 
and  still  be  permitted  to  remain  upon  the  statute 
books.  It  therefore  becomes  necessary  to  know 
what  judicial  determinations  there  may  have 
been  upon  the  matter. 

101.  Invalid  Act  Is  No  Defense  for  Officer. 
"Where  an  officer  of  state  or  city  has  acted  in  per- 
fect good  faith,  relying  upon  a  certain  statute  or 
ordinance  for  his  authority,  and  in  the  course  of 
his  efforts  he  has  worked  injury  to  some  citizen, 
either  in  person  or  property,  if  it  shall  later  ap- 
pear that  the  statute  was  unconstitutional,  or  that 


138      ESSENTIALS  OF  VETERINARY  LAAV 

the  city  had  exceeded  its  authority  in  framing  the 
ordinance,  so  that  the  enactment  is  void,  the  offi- 
cer cannot  plead  as  justification  either  the  fact 
that  he  was  complying  with  the  terms  of  the  ille- 
gal enactment,  or  that  he  was  acting  in  good 
faith. ^^  It  therefore  becomes  evident  that  the 
governmental  veterinarian  should  not  be  content 
with  mechanically  following  the  statute,  or  the 
orders  of  his  superior  officer.  He  should  learn  at 
least  the  jDrinciples  of  law  governing  the  position. 

102.  Quarantine.  An  infectious  disease  is  a 
nuisance,  and  as  such  it  should  be  abated.  The 
animals  in  which  it  exists  are  not  of  themselves 
nuisances,  and  they  have  commercial  value  in 
most  cases.  The  disease  cannot  be  summarily 
abated  without  also  destroying  the  animals.  For 
this  reason  we  are  accustomed  to  adopt  certain 
restrictive  measures.  At  one  time  the  only  method 
upon  which  dependence  was  placed  was  quaran- 
tine. The  period  of  isolation  may  safely  be  mate- 
rially lessened  by  certain  modern  methods  by 
which  the  disease  germs,  or  their  carriers,  are 
destroyed,  without  injuring  the  stock. 

103.  Quarantine  Does  Not  Depend  upon  Statute. 
Where  there  is  an  enactment  directing  where  and 
how  a  quarantine  shall  be  established,  that  enact- 
ment must  be  observ^ed;  but  where  the  law  is 
silent,  the  police  power  of  the  community  will 
sujoport  any  reasonable  measure  taken  for  the 

19  PuBLC  Health,  361 ;  Fisher  196;  Cunningham  v.  Macon  E. 

V.   McGirr,   1   Gray,    1 ;    Ely  v.  E.  Co.,  109  U.  S.  446 ;  Poindex- 

Thompson,  3  A.  K.  Marsh,  70;  ter  v.  Greenhow,  114  U.  S.  270; 

Osborn  v.  Bank,  9  Wheat.  738 ;  Sumner  v.  Beelor,  oO  Ind.  341 ; 

Norton  v.  Shelby  Co.,  118  U.  S.  Board  v.  McComb,  92  U.  S.  531. 
425;    U.   S.  V.  Lee,   lOG   U.  S. 


GOVERNMENTAL  SERVICES  139 

restriction  of  the  disease.  The  validity  of  quar- 
antine regulations  made  by  the  state  board  of 
health  is  a  matter  for  state  courts  to  determine.^^ 
Where  the  statute  authorizes  a  city  to  take  such 
measures  for  the  restriction  of  infectious  disease 
as  are  demanded,  according  to  the  opinion  of  the 
authorities,  the  city  is  not  bound  by  the  provisions 
in  the  general  statutes  regulating  quarantine,  and 
in  one  case  it  was  held  that  they  were  justified  in 
quarantining  both  sides  of  a  double  house  where 
smallpox  was  in  one  side.^^  But  in  all  cases  the 
regulations  must  be  impartial,  and  reasonable, 
and  fitted  for  their  purpose.-^  Though  reasonable 
regulations  will  be  considered  as  law,  the  orders 
or  regulations  of  a  health  department  differ  from 
enacted  statutes,  in  that  citizens  are  not  supposed 
to  know  them.2^  In  prosecutions  for  violation  of 
such  regulations  it  is  therefore  incumbent  upon 
the  prosecution  to  show  that  the  party  did  have 
knowledge,  or  that  at  least  the  notice  was  served 
before  the  violation  charged. 

104.  Authority  Can  Not  Be  Delegated.  Where 
the  law  grants  the  authoiity  to  a  board  to  estab- 
lish and  maintain  quarantine,  the  board  cannot 
delegate  that  authority  to  a  health  officer.^^  The 
general  rule  is  that  authority  vested  with  discre- 
tion cannot  be  delegated.     (§9.)     The  matter  of 

20  Louisiana  v.  Texas,  176  U.  E.  E.  Co.  v.  Husen,  5  Otto,  465. 
S.  1.  23  state  V.  Butts,  3   S.  Dak. 

21  Highland  v.  Schulte,  123  577,  19  L.  E.  A.  725,  54  N.  W. 
Mic-h.  360,  82  N.  W.  62.  603. 

22  Wilson   V.   Alabama,   G.  S.  24  Taylor   v.    Adair    Co.,    119 
By.   Co.,   77   Miss.    714,   28   So.  Ky.   374;    Hickman   v.   McMor- 
567;  Wong  Wai  v.  Williamson,  ris,  149  Ky.  1,  147  S.  W.  768. 
103  Fed.  1;  Hannibal  &  St.  J. 


140      ESSENTIALS  OF  VETERINARY  LAW 

deciding  when  quarantine  must  be  established  or 
removed,  and  the  style  of  quarantine  to  be  adopt- 
ed, is  one  which  implies  discretion  and  considera- 
tion. This  cannot  be  delegated.  But  the  board 
or  other  health  authority  can  employ  the  services 
of  an  officer  or  private  citizen  to  carry  out  the 
methods  and  acts  which  the  proper  health  author- 
ity directs.  It  is  not  to  be  presumed  that  the 
officer  or  board  would  personally  maintain  the 
quarantined^ 

105.  What  Diseases  Quarantinable.  Any  infec- 
tious disease,  propagated  by  means  of  bacteria  or 
protozoa,  is  subject  to  quarantine,  whenever  the 
welfare  of  the  community  demands  such  action. 
Quarantine  is  never  justifiable  where  its  mainte- 
nance does  not  restrict  the  disease.  Cholera  is 
an  infectious  disease  due  to  the  action  of  a  specific 
bacillus,  but  in  the  light  of  the  present  knowledge 
a  quarantine  which  simply  prohibited  the  entrance 
or  exit  of  persons  from  the  premises  w^ould  not  be 
considered  as  proper  quarantine.  Yellow  fever  is 
a  better  illustration.  Malaria  was  not  formerly 
considered  subject  to  quarantine,  but  with  our 
present  knowledge,  even  in  the  absence  of  special 
laws  relative  to  that  disease,  a  quarantine  would 
be  justifiable  under  certain  conditions.  It  would 
not  be  justifiable  in  a  community  in  which  there 
were  no  anopheline  mosquitoes,  for  there  the 
quarantine  would  be  useless,  and  therefore  un- 
reasonable. It  therefore  follows  that  quarantine 
is  not  an  invariable  method  of  restricting  disease. 

25  Breckenridge  Co.  v.  Mc- 
Donald, 154  Ky.  721,  159  S.  W. 
549. 


GOVERNMENTAL  SERVICES  141 

Diseases  which  were  formerly  not  considered  sub- 
ject to  it  are  today  restricted  by  its  use;  and  it  is 
not  unlikely  that  diseases  which  are  not  today 
recognized  as  spread  by  germs  may  later  be 
stamped  out  by  quarantine. 

106.  Methods  in  Quarantine.  Formerly  quar- 
antine consisted  simply  in  preventing  the  entrance 
of  persons  or  animals  upon  infected  premises,  or 
their  exit  therefrom.  Fences  were  erected  around 
yellow  fever  premises,  but  the  disease  spread. 
Now  effective  quarantine  is  maintained  by  screen- 
ing in  the  patient,  and  killing  the  mosquitoes. 
After  three  days  the  yellow  fever  patient  is  no 
longer  able  to  transmit  the  disease  to  the  stego- 
myia  mosquito,  and  further  quarantine  is  useless. 
The  malarial  patient  must  be  kept  under  guard 
sometimes  for  months.  Eats,  and  the  fleas  which 
they  carry,  are  the  means  by  which  the  bubonic 
plague  is  spread.  Quarantine  in  these  cases  there- 
fore means  destruction  of  the  vermin  for  a  certain 
district,  always  working  from  the  outside  of  a 
circle  in  whose  centre  infection  has  been  found.^*^ 

In  veterinary  practice  a  quarantine  may  mean 
only  the  restriction  of  certain  kinds  of  animals, 
or  the  restriction  of  the  passage  of  all  members 
of  the  animal  kingdom.  For  the  Texas  cattle 
fever  quarantine  includes  killing  the  ticks,  either 
by  dipping  the  infected  animals,  or  by  destroy- 
ing the  animals  and  disinfecting  the  premises. 
Infected  animals  may  be  useful  for  food  purposes, 
so  that  burning  the  carcasses  is  not  necessary,  as 
it  is  for  anthrax.    Anthrax  has  been  known  to  be 

26PUBUC      HeAI/TH,       §§402, 
403. 


142      ESSENTIALS  OF  VETERINARY  LAW 

spread  by  the  overflowing  of  pastures  by  streams 
which  received  the  discharge  of  tanneries  in  which 
infected  hides  had  been  treated.^'^  Reasonable 
quarantine  there  might  therefore  include  the  pro- 
hibition of  the  use  of  such  pastures.  Dourine  was 
formerly  supposed  to  be  spread  only  by  inter- 
course, and  under  such  conditions  quarantine 
would  only  prevent  such  relations  between  the 
healthy  and  the  sick.  The  experiments  on  the 
Canal  Zone,  however,  showed  that  the  disease  may 
be  spread  by  flies.  A  reasonable  quarantine  of 
many  animal  diseases  must  include  screening 
against  insects.  All  that  is  necessary  and  efficient 
will  be  sustained;  nothing  in  excess  of  that  would 
be  approved  by  the  courts,  in  most  instances;  but 
in  deciding  what  shall,  and  what  shall  not,  be  sus- 
tained the  courts  will  be  guided  not  only  by  past 
usage,  but  also  by  scientific  advances  when 
properly  presented.  It  is  necessary  that  the 
officer  presenting  some  new  method  for  the  con- 
sideration of  the  court  remember  that  his  own 
bare  statement  of  fact  may  not  be  enough;  he 
may  be  obliged  to  say  how  his  position  in  opin- 
ion has  been  gained.  It  may  not  be  enough  to  say 
that  yellow  fever  is  only  transmitted  by  the  bite 
of  the  stegomyia,  but  the  officer  should  state  how 
that  fact  has  been  demonstrated ;  and  the  necessity 
for  such  presentation  is  in  direct  ratio  to  the  new- 
ness of  the  demonstration. 

A  state  statute  in  "Wyoming  directed  the  state 
veterinarian  to  quarantine  for  certain  diseases; 
and  it  further  gave  him  authority  to  order  infected 

2T  Bavenel,  Eept.  Am.  Pub.  sell,  Eept.  Wis.  Agr,  Expt.  Sta- 
Health  Assn.,  1898,  p.  302;  Eus-      tion,  1900,  p.  171. 


GOVERNMENTAL  SERVICES  143 

animals  sprayed  or  dipped,  and  after  reasonable 
notice,  on  the  failure  of  the  owner  to  obey,  the 
veterinarian  might  seize  and  dip  the  animals,  and 
hold  them,  or  sell  them  for  the  cost  of  the  pro- 
cedure. The  constitutionality  of  the  law  was 
attacked.  The  court  held  that  the  only  authority 
of  the  state  for  the  enforcement  of  animal  inspec- 
tion laws  was  as  a  police  regulation.  The  author- 
ity conferred  by  the  legislature  upon  the  state 
veterinarian  was  not  an  improper  delegation  of 
legislative  power,  nor  a  violation  of  due  process 
of  law,  though  the  reasonableness  of  the  require- 
ments imposed  by  the  state  veterinarian  might  be 
litigated  were  they  properly  put  in  issue.^^ 

107.  Quarantine  Regulations  Should  Be  Pub- 
lished. Quarantine  rules  and  regulations  may  be 
general  or  specific.  In  the  specific  application  of 
general  rules  to  individual  cases  it  is  often  neces- 
sary to  make  special  orders.  These  orders,  includ- 
ing the  general  laws  and  regulations  on  the  sub- 
ject, should  be  served  in  writing,  or  printed,  upon 
the  responsible  party  caring  for  the  animals  to  be 
quarantined;  and  a  record  should  be  made  of  the 
facts  by  whom  and  on  whom  the  papers  were 
served,  and  the  time  when.  If  the  orders  be  writ- 
ten a  carbon  copy  should  be  preserved  by  the 
officer.  This  may  avoid  complications  in  the  fu- 
ture, and  furnishes  the  basis  of  proof  in  case  of 
legal  contest.  General  rules  and  regulations, 
whether  issued  by  a  board  or  by  an  executive 
officer,  should  be  published  in  such  a  manner  as 
to  be  easily  accessible  to  all  citizens,  and  especially 

zsArbuckle  v.  Pflaeging,  123 
Pac.  918,  20  Wy.  351. 


144      ESSENTIALS  OF  VETERINARY  LAW 

to  attract  the  attention  of  those  most  interested. 
If  enacted  by  a  board,  the  minutes  of  the  board 
should  show  a  quorum  present,  and  that  the  rules 
or  regulations  were  formally  presented  and  passed, 
and  they  should  be  fully  recorded  in  the  minutes. 
The  record  should  also  show  either  that  the  meet- 
ing was  a  regular  meeting,  or  that  it  was  legally 
called.  Violations  of  these  provisions  might  be 
held  to  be  a  violation  of  due  process  of  law,  in 
that  the  victim  had  no  opportunity  to  be  heard.^^ 
108.  Dia^osis.  The  matter  of  diagnosis  in 
infectious  diseases  is  most  important.  Clearly 
such  a  decision  should  only  be  made  by  those  who 
are  technically  educated,  and  who  are  free  from 
special  interest.  In  other  words  so  nearly  as  pos- 
sible it  should  be  made  with  reference  to  animal 
disease  only  by  a  veterinarian,  and  that  veterina- 
rian should  be  a  public  officer  who  is  not  engaged 
in  private  practice.  It  should  never  be  subject 
to  review  in  court,  where  the  judge  must  depend 
upon  others  for  expert  opinion.  On  the  other 
hand,  especially  where  the  local  work  is  in  charge 
of  veterinarians  engaged  in  private  practice,  jus- 
tice demands  that  either  side  may  appeal  within 
the  department.  This  implies  that  there  be  a 
thoroughly  organized  department,  either  within, 
or  without,  the  regular  state  department  of  health. 
This  provision  should  be  made  clear  in  the  gen- 
eral statutes  of  the  state.  It  is  the  province  of 
the  official  veterinarian  to  make  the  diagnosis, 
even  where  the  statute  is  silent  upon  this  point, 
and  he  will  be  upheld  generally  by  the  courts, 

29  People  V.  Tait,  261  111.  197, 
103  N.  E.  750. 


GOVERNMENTAL  SERVICES  145 

wherever  there  is  any  ground  for  his  decision.^*' 
Nevertheless,  cases  have  occurred  in  which  courts 
have  seen  fit  to  review  and  reverse  the  decision  of 
health  authorities  relative  to  infectious  diseases 
in  animals.^ ^ 

Inasmuch  as  infectious  diseases  are  the  result 
of  the  action  of  specific  germs,  either  bacterial  or 
protozoal,  where  those  germs  have  been  definitely 
identified  by  microscopic  examination,  the  sure 
method  of  diagnosis  is  by  such  examination.  It 
has  therefore  been  held  that  a  city  has,  under  its 
general  powers,  the  authority  to  appoint  a  bac- 
teriologist; and  that  such  office  or  employment  is 
not  an  interference  with  the  work  of  the  regular 
health  official,  but  an  aid  in  this  work.^^  "While, 
then,  a  court  may  not  generally  interfere  with  the 
diagnosis  of  an  official  veterinarian,  it  might  very 
properly  set  aside  a  diagnosis  which  was  evidently 
not  made  in  accord  with  the  present  state  of 
scientific  knowledge.  The  cause  of  glanders  is 
the  Bacillus  mallei,  which  is  well  known.  It  is 
not  unlikely  that  where  a  veterinarian  has  neg- 
lected to  verify  his  diagnosis  by  means  of  a  bac- 
terial examination  or  blood  test  the  court  might 
properly  question  his  diagnosis.  If,  therefore, 
the  veterinarian  orders  a  horse  killed  for  that  dis- 
ease he  should  make  and  preserve  microscopic 
slides  showing  the  Bacillus  mallei  taken  from  that 

30  Kennedy  v.  Board  of  Ho  v.  Williamson,  103  Fed.  10. 
Health,  2  Pa,  366 ;  Brown  v.  3i  Miller  v.  Horton,  152  Mass. 
Purdy,  8  N.  Y.  143;  In  re  540;  Lowe  v.  Conroy,  120  Wis. 
Kaiahua,  19  Ha.  218;  Thomas  151,  97  N.  W.  942. 
V.  Ingham  Co.  Supervisors,  142  32  State  ex  rel.  Shell  v.  Dun- 
Mich.  319;  Browne  v.  Living-  can,  162  Ala.  196,  50  So.  265. 
ston   Co.,   126   Mich.    276;    Jew 


146      ESSENTIALS  OF  VETERINARY  LAW 

horse,  and  each  slide  should  be  so  marked  as  to 
be  proper  evidence  to  present  in  trial  of  possible 
future  action  in  the  case.  In  such  cases  the  court 
would  not  be  reviewing  the  diagnosis,  but  it  might 
set  the  diagnosis  aside  as  a  violation  of  discretion, 
in  that  the  veterinarian  had  not  made  use  of  ap- 
proved methods  of  diagnosis."" 

109.  Jurisdiction  in  Quarantine.  Questions  as 
to  jurisdiction  in  quarantine  occasionally  arise.'* 
First  it  must  be  remembered  that  the  authority  of 
Congress,  and  consequently  of  federal  officers  and 
employees,  is  found  in  the  power  to  regulate  inter- 
state and  foreign  commerce.  ' '  Disease,  pestilence, 
and  pauperism  are  not  subjects  of  commerce,  al- 
though among  its  attendant  evils.  They  are  not 
things  to  be  regulated  and  trafficked  in,  but  to 
be  prevented,  as  far  as  human  foresight  or  human 
means  can  guard  against  them. ' '  ^^  Therefore 
'  *  Congress  has  not  only  the  right  to  pass  laws  reg- 
ulating legitimate  commerce  among  the  states  and 
with  foreign  nations,  but  also  it  has  full  power  to 
bar  from  the  channels  of  such  commerce  illicit  and 
harmful  articles. ' '  ^^  The  federal  government  thus 
has  power  under  the  commerce  clause  to  main- 
tain such  inspection  and  quarantine  as  may  be 
necessary  to  prevent  the  introduction  of  infectious 
diseases  or  their  germs  from  foreign  countries, 
or  into  one  state  from  another.  Ordinarily  the 
individual  states  may  do  nothing  which  would 
interfere  with  the  federal  control  over  interstate 

83  Public  Health,  407.  Peirce    v.    New    Hampshire,    5 

34  Public  Health,  408.  How.  504. 

35  License   Cases,   Thurlow  v.  36  McDermott    v.    Wisconsin, 
Mass ;  Fletcher  v.  Ehode  Island ;  228  U.  S.  115. 


GOVERNMENTAL  SERVICES  147 

traffic,  and  the  authority  of  the  nation  begins  with 
the  shipment  of  the  goods,  and  onl}^  ends  when  the 
goods  are  sold,  or  mixed  with  the  property  of  the 
state. ^'  A  shipment  from  one  point  in  a  state  to 
another  point  in  the  same  state,  but  where  the 
goods  pass  through  a  point  in  another  state,  is 
interstate  commerce.^^  "Although,  from  the  na- 
ture and  subject  of  the  power  to  regulate  com- 
merce, it  must  be  exercised  by  the  national  gov- 
ernment exclusively,  this  has  not  been  held  to  be 
so  where  in  relation  to  the  subject  matter  different 
rules  might  be  suitable  in  different  localities.  At 
the  same  time.  Congress  could  by  affirmative  act 
displace  the  local  laws,  and  substitute  laws  of  its 
own,  and  thus  correct  any  unjustifiable  and  op- 
pressive exercise  of  power  by  state  legislation. ' '  ^^ 
"While,  therefore,  even  in  such  cases  Congress  still 
has  power  to  act,  in  matters  pertaining  to  localized 
conditions  and  dangers  Congress  has  elected  to 
let  the  several  states  regulate  the  matter  of  pro- 
tecting the  public  health  as  to  themselves  seemed 
best.^"  Because  disease  is  not  a  fit  subject  of  com- 
merce, state  officers  have  maintained  quarantine 
at  their  borders,  although  the  subjects  of  the 
quarantine  had  already  been  passed  by  federal 
officers  of  health,  and  the  federal  courts  have 
denied  their  own  right  to  interfere  by  an  injunc- 
tion; and  the  costs  and  charges  of  such  quarantine 
inspection  under  state  laws  may  be  lawfully  im- 

37  Brown     v.     Maryland,     12  Fear  &  Y.  V.   E.   E.,   29  S.  C. 
Wheat.  419.  510. 

38  Hanley  v.  Kansas  City  S.  39  Louisiana  v.  Texas,  176  U. 
Ey.  Co.,  187  U.  S.  617;  State  v.  S.  1. 

St.  P.,  M.  &  O.  Eailroad  Co.,  40  4o  Bartlett  v.   Lockwood,   160 

Minn.  267 ;  Sternberger  v.  Cape      U.  S.  357. 


148      ESSENTIALS  OF  VETERINARY  LAW 

posed  upon  the  carrier  which  brings  the  persons 
or  animals  into  the  state,  as  being  incident  to  the 
business  in  which  it  is  engaged.-^^  The  authority 
of  the  individual  states  to  enact  such  laws  is  be- 
yond question,  even  where  their  operation  inter- 
feres with  interstate  or  foreign  commerce,  but 
this  authority  cannot  be  made  to  cover  discrimina- 
tions and  arbitrary  enactments.^^ 

Primarily  the  authority  of  quarantine,  being 
derived  from  police  power,  resides  in  the  state; 
and  cities,  villages,  towns,  counties  or  other  dis- 
tricts have  only  such  power  as  has  been  given  to 
them  by  the  state  in  which  they  are  located.  Thus, 
under  the  power  given  by  the  state  a  county  in 
Kentucky  might  establish  and  maintain  quaran- 
tine against  other  parts  of  the  same  state,  but  it 
could  not  establish  a  quarantine  against  another 
state,  nor  against  any  part  thereof,  unless  that 
power  be  distinctly  given  by  the  act  of  the  state 
legislature.^^  "Cities  are  no  longer  enclosed  by 
stone  walls  and  separate  and  apart  from  the  bal- 
ance of  the  state.  The  sanitary  condition  exist- 
ing in  any  one  city  of  the  state  is  of  vast  impor- 
tance to  all  the  people  of  the  state,  for  if  one  city 
is  permitted  to  maintain  insanitary  conditions  that 
will  breed  contagious  and  infections  diseases,  its 
business  and  social  relation  with  all  other  parts 
of  the  state  will  necessarily  expose  other  citizens 

41  Minn.,  St.  Paul  &  S.  S.  M.  Mich.  238;  Salzenstein  v.  Ma- 
Ry.  Co.  V.  Milner,  57  Fed.  276.  vis,  91  lU.  391;  C.  &  A.  E.  R. 

42  Simpson    v.    Shepard,    (U.  Co.    v.    Erickson,    91    111.    613; 
S.)  33  Sup.  Ct.  729;  Hannibal,  Jarvis  v.  Eiggin,  94  111.  164. 
etc.,  R.  Co.  V.   Husen,   5  Otto,  < 3  Allison   v.    Cash,    143    Ky. 
465;     Hurst    v.     Warner,     102  679,  137  S.  W.  245. 


GOVERN^IENTAL  SERVICES  149 

to  the  same  diseases."  *^  The  state  does  not  sur- 
render quarantine  authority  to  its  component 
parts  by  such  permissions,  and  its  power  and  au- 
thority to  establish  quarantine  within  its  limits 
is  not  today  questioned.^^  A  statute  delegating 
to  a  city  the  power  to  make  quarantine  regulations 
is  not  unconstitutional,^^  but  *'A  municipality  has 
no  implied  power  to  establish  quarantine  regula- 
tions, and  is  not  liable  for  the  compensation  of  an 
officer  employed  to  enforce  quarantine  regulations 
against  a  neighboring  town  in  which  an  epidemic 
occurs. "  *^  In  such  a  case  the  officer  employing 
such  guardian,  having  exceeded  his  lawful  author- 
ity, and  being  the  officer  of  an  incorporated  city, 
may  be  possibly  held  individually  liable  for  his 
pay.  Even  where  authority  has  been  delegated  by 
the  state  to  a  city  or  county  to  establish  and  main- 
tain quarantine,  its  ordinance  will  be  declared 
void  if  it  conflicts  with  state  quarantine  laws.^^ 
110.  Quajrantine  Versus  Commerce.  Properly 
considered,  quarantine  is  an  aid  to  conunerce,  and 
not  a  restriction  of  commerce.^^  By  preventing 
the  transportation  of  infectious  materials  com- 
merce in  legitimate  articles  is  facilitated  and  made 
more  safe.  But  laws  passed  under  the  guise  of 
quarantine  regulations,  which  are  not  such  in  fact, 
but  are  really  commercial  restrictions,  will  not  be 
sustained.^"    The  Idaho  sheep  law  of  1897  made  it 

44  State  Board  of  Health  v.  47  New  Decatur  v.  Berry,  90 
Greenville,  86  Ohio,  1.  Ala.  432. 

45  State    ex    rel.    Adams    v.  48  People    v.    Eoff,    3    Park. 
Burdge,  95  Wis.  390,  70  N.  W.  Crim.  Cas.  216. 

347,  37  L.  K.  A.  157.  49  Public  Health,  409. 

46Metcalf    V.    St.    Louis,    11  so  Hannibal,    etc.,    E.    Co.    v. 

Mo.  102.  Husen,  5  Otto,  465;  Salzenstein 


150      ESSENTIALS  OF  VETERINARY  LAW 

unlawful  to  bring  sheep  into  the  state  without 
having  them  dipped.  This  was  to  prevent  the  in- 
troduction of  certain  infectious  diseases,  but  as 
the  statute  was  worded  the  dipping  had  no  neces- 
sary connection  with  the  presence  of  disease.  All 
sheep  must  be  dipped,  and  the  dipping  of  sheep 
which  were  not  infected  would  increase  the  cost 
of  the  importation.  By  thus  increasing  the  cost 
of  importation,  the  value  of  the  sheep  already 
within  the  state  would  be  increased.  This  law  was 
therefore  considered  as  not  strictly  a  quarantine 
regulation,  but  as  a  restriction  upon  interstate  and 
foreign  commerce,  and  therefore  as  an  infringe- 
ment upon  the  Constitutional  authority  of  Con- 
gress.^^  On  the  other  hand,  where  the  act  clearly 
related  to  quarantine,  as  where  it  put  restrictions 
upon  cattle  coming  from  infected  districts,^^  or 
where  it  required  an  inspection  of  sheep  before 
permitting  them  upon  the  public  highways,^ ^  it 
was  upheld.  The  Idaho  law  of  1899  provided  for 
the  establishment  of  a  sheep  quarantine  upon 
proclamation  of  the  Governor.  Acting  under  this 
law  the  Governor  issued  a  proclamation  for  the 
quarantine  of  sheep  on  account  of  scab.  The  court, 
however,  held  that  this  was  really  a  restriction  of 
commerce,  because  in  fact  there  w^as  no  disease 
epidemic.^* 

It  is  evident  that  the  establishment  and  main- 
tenance of  quarantine  may  restrict  the  commer- 

V.  Mavis,  91  111.  391;  Jarvis  v.  53  Rasmussen     v.     State     of 

Riggin,  94  111.  164.  Idaho,  181  U.  S.  198. 

ci  State  V,  Duckworth,  5  Ida.  ^4  Smith   v.   Lowe,    121    Fed. 

642,  51  Pac.  456.  753. 

C2  Smith  V,  St.  L.  &  S.  W.  E. 
Co.,  181  U.  S.  248. 


GOVERNMENTAL  SERVICES  151 

cial  relations  of  those  thus  restrained;  and  that 
this  restriction  may  work  financial  injury  to  cer- 
tain persons.  A  health  official,  acting  within  his 
legal  authority,  is  not  liable  for  such  injuries  re- 
sulting from  reasonable  and  customary  measures 
as  he  may,  in  good  faith,  adopt  or  order  for  that 
purpose  with  regard  to  persons  or  matters  within 
his  jurisdiction.^^  But  if  it  shall  be  shown  that 
his  act  has  been  unreasonable,  and  not  in  accord 
with  scientific  knowledge,  or  that  he  otherwise  has 
exceeded  his  authority,  he  may  be  held  in  civil 
damages  for  such  injury  as  may  appear. ^*^ 

111.  Destruction  of  Property.  Property  de- 
stroyed under  police  power  requires  no  compensa- 
tion according  to  the  common  law.^^  (§§15-22) 
In  this  it  differs  from  the  taking  of  property  under 
the  power  of  eminent  domain.  In  eminent  domain 
the  property  is  taken  for  the  use  of  the  public. 
Under  police  power  the  property  is  taken  and 
destroyed  because  it  is  harmful,  and  "the  prop- 
erty itself  is  the  cause  of  the  public  detriment."  ^^ 
But  it  is  necessary  that  the  property  destroyed 
be  in  fact  a  nuisance,  and  ex  parte  condemnations 
of  property  are  not  conclusive.^® 

112.  Personal  Liability  for  Infectious  Disease. 
The  owner  of  a  flock  of  sheep  infected  with  scab 

55  Allison    V.    Cash,    143    Ky.  58  Davidson  v.   New  Orleans, 

679;    21    Cyc.    405;    Seavey   v.  96  U.  S.  97. 

Preble,   64    Mo.    120 ;    Whidden  59  Salem   v.    Eastern   E.    Co., 

V.   Cheever,   69    N.   H.    142,   44  98  Mass.  431 ;  Shipman  v.  State 

Atl.    908;    Beeks    v.    Dickinson  Live  Stock  Commrs.,  115  Mich. 

Co.,  131  Iowa,  244.  488;  Lowe  v.  Conroy,  120  Wis. 

5«  Lowe  V.   Conroy,   120   Wis.  151;  Waye  v.  Thompson,  15  L. 

151,  97  N.  W.  942.  R.    Q.    B.    D.    342;     Miller    v. 

67  Frennd,  Police  Power,  517.  Horton,  152  Mass.  540. 


152      ESSENTIALS  OF  VETERINARY  LAW 

which  broke  through  a  fence  which  it  was  his 
duty  to  maintain,  and  infected  a  neighbor's  sheep, 
was  held  liable  for  damages.^*^  In  another  case 
the  owner  of  the  infecting  sheep  pleaded  * '  the  act 
of  God"  in  that  his  sheep  escaped  during  a  severe 
storm,  and  also  that  the  owners  of  the  other  flock 
permitted  his  sheep  to  mingle  with  their  own. 
The  court  nevertheless  held  the  owner  of  the  first 
flock  liable  because  it  was  not  shown  that  the 
storm  was  of  such  an  unusual  character  that  he 
could  not  reasonably  have  anticipated  it,  and 
guarded  against  it;  and  it  further  held  that  the 
owners  of  the  second  flock  were  not  guilty  of  con- 
tributory negligence,  because  the  fact  that  the 
first  flock  were  infected  was  not  at  first  apparent.^^ 
If  the  circumstances  create  a  suspicion  that  a  dog 
may  have  hydrophobia,  the  owner  must  use  spe- 
cial care  to  prevent  his  spreading  the  infection, 
and  if  injury  results  through  his  negligence  he 
will  be  held  liable.^^ 

The  keeping  of  an  animal  having  an  infections 
disease  is  not  per  se  culpable,  and  it  will  not  give 
a  right  of  action  for  damages  sustained  in  conse- 
quence of  the  disease  being  communicated  to 
other  animals  unless  the  owner  of  the  diseased 
animal  knew  that  it  was  diseased,  and  was  guilty 
of  some  negligence  in  the  manner  of  keeping  it. 
In  an  action  against  a  stockyards  company  for 
death  of  cattle  from  Texas  cattle  fever,  alleged  to 
have  been  communicated  to  them  by  ticks  which 

eoHerriekv.  Gary,  65  111.  101.  02  Buck    v.    Brady,    110    Md. 

61  Mesa  Be  Mayo  Land  and      568,  73  Atl.  277. 
Live  Stock  Co.  v.  Hoyt,  24  Colo, 
App.  279,  133  Pac.  471. 


GOVERNMENTAL  SERVICES  153 

had  dropped  in  pens  of  the  stockyards  company, 
the  plaintiff  is  bound  to  show  that  the  cattle 
alleged  to  have  dropped  the  ticks  were  in  the  pens, 
and  that  they  contaminated  the  same,  and  that 
the  company  did  not  disinfect  the  pens.  It  will 
be  presumed  that  the  stockyards  company  did  its 
duty  in  the  absence  of  evidence  to  the  contrary.  A 
purchaser  who  bought  cattle  subsequent  to  infec- 
tion, has  no  right  of  action  for  the  negligence  to 
which  the  disease  is  due,  in  the  absence  of  evi- 
dence that  the  company  knew,  at  the  time  of  sale, 
that  the  cattle  were  infected.^^ 

A  plaintiff  rented  a  barn  to  defendant  company, 
in  which  to  house  horses  injured  or  temporarily 
incapacitated  while  performing  certain  work.  The 
fact  that  defendant  innocently  housed  a  glandered 
horse  in  the  bam,  resulting  in  its  destruction  by 
the  public  authorities,  did  not  constitute  a  tres- 
pass, and  the  defendant  was  not  liable  for  the 
value  of  the  barn.^^     (§  211.) 

113.  Law  Versus  Policy.  Although,  as  we  have 
stated,  property  which  is  taken  and  destroyed  for 
the  public  good  under  police  power  differs  from 
that  taken  under  the  power  of  eminent  domain  in 
that  its  confiscation  imposes  no  legal  obligation 
for  payment,  this  is  an  extreme  use  of  the  power. 
*' Where  it  is  proposed  to  exercise  such  an  author- 
ity the  constitutional  right  of  private  property 
must  be  weighed  against  the  demands  of  the  pub- 
lic welfare,  and  it  is  obvious  that  a  public  interest 

esEshleman  v.  Union  Stock-  &  Co.,  72  Wash.  482,  130  Pac, 

yards  Co.   222  Pa.  20,   70   Atl.  753,  44  L.  R.  A.   (N.  S.)   1092. 

899.  Affirmed  on  rehearing,  72  Wash. 

6<  Farrar  v,  Andrew  Peterson  482,  133   Pac.  594. 


154      ESSENTIALS  OF  VETERINARY  LAW 

which  is  strong  enough  to  justify  regulation  may 
not  be  strong  enough  to  justify  destruction  or  con- 
fiscation without  compensation.'"'^  The  destruc- 
tion of  sound  property  without  compensation 
would  be  unconstitutional^*'  Dead  animals  and 
garbage  may  have  a  property  value,  yet  the  rights 
of  property  of  the  individual  have  been  held  subor- 
dinate to  the  general  good,  and  the  confiscation 
and  destruction  of  such  property  without  com- 
pensation to  the  individual  owner  has  been  repeat- 
edly upheld.^"  Milk  which  has  not  been  produced 
in  accordance  with  the  requirements  of  a  city  still 
has  commercial  value.  Nevertheless,  when  an 
attempt  has  been  made  to  bring  such  milk  into 
the  city  it  has  been  repeatedly  held  that  the  city 
is  justified  in  seizing  the  milk  and  destroying  it.^^ 
Animals  afflicted  with  infectious  diseases  are 
nuisances.  The  disease  germ  is  a  nuisance  per  se 
and  as  such  the  community  demands  its  extermi- 
nation. Unfortunately  it  is  so  intimately  asso- 
ciated with  the  animal  which  has  a  property  value 
that  its  extermination  may  involve  the  destruc- 
tion of  the  animal,  as  in  the  case  of  anthrax, 
according  to  our  present  knowledge.  The  animal 
infected  with  the  disease  is  a  nuisance  in  esse,  and 
as  such  is  subject  to  such  reasonable  restriction 

csFreund,  Police  Power,  517.  cs  Blazier  v.  Miller,  10  Him, 

06  Pearson    v.    Zehr,    138    111.  435;   Deems  v.   Mayor,   80  Md. 

48;  Miller  v.  Horton,  152  Mass.  164;  Shivers  v.  Newton,  45  N. 

540.  J.    L.   469;    Nelson   v.    Minne- 

c7  California  Bed.  Co.  v.  Sani-  apolis,  112  Minn.  16 ;  Adams  v 

taryEed.  Works,  199  U.  S.  306;  Milwaukee,   144   Wis.    371,    129 

Gardner    v.    Mich.,    199    U.    S.  N.  W.  518;   Adams  v.  Milwaii- 

325;   McGehee,  Due  Process  of  kee,  228  U.  S.  572. 

Law,     336;     Public     Health, 

450. 


GOVERNMENTAL  SERVICES  155 

as  seems  to  be  required  for  the  general  good.  The 
animal  infected  with  anthrax  has  no  property  val- 
ue, no  matter  how  very  valuable  it  might  liave  been 
previous  to  infection,  for  the  dangerous  germ  is  so 
intimately  associated  with  the  tissues  as  to  render 
them  dangerous  even  after  they  have  been  cured 
by  various  processes,  such  as  in  the  tanning  of 
hides.  Since  there  is  no  property  value  there  is 
no  moral,  as  well  as  no  legal,  obligation  on  the 
part  of  the  community  to  pay  for  such  animals 
when  destroyed. 

An  animal  infected  with  tuberculosis  may  be 
considered  in  a  very  different  light.    Here,  too, 
the  bacillus  is  a  nuisance  per  se,  and  the  animal 
is  a  nuisance  in  esse.    However,  the  animal  may 
have  still  considerable  value.    Her  milk  may  be 
sterilized  and  used  for  food  for  other  animals;  or 
it  may  be  used  in  certain  manufacturing  enter- 
prises.   If  killed,  not  infrequently  the  entire  car- 
cass can  be  used  for  ordinary  purposes,  with  very 
slight  exceptions.    The  animal  may  be  very  valu- 
able  for   breeding   purposes,   begetting   healthy 
stock  of  a  strain  showing  many  generations  of 
careful  selection  in  breeding.    The  destruction  of 
this  animal  may  be  a  serious  detriment  to  the  ani- 
mal industry.    Since  the  disease  cannot  be  sepa- 
rated from  the  animal,  according  to  present  knowl- 
edge, and  it  will  eventually  prove  fatal,  and  its 
presence  creates  a  constant  danger  to  other  ani- 
mals, including  man,  the  right  of  the  state  to  take 
the  animal  and  destroy  it  should  not  be  legally 
doubted.    On  the  other  hand,  the  taking  of  such 
animals  without  compensation  begets  a  feeling  of 
injustice  in  the  minds  of  the  property  owners  thus 


156      ESSENTIALS  OF  VETERINARY  LAW 

harmed,  and  incites  them  to  keep  the  existence 
of  the  disease  secret  so  long  as  possible.  Policy 
therefore  dictates  that  the  community  share  with 
the  owner  his  loss,  by  paying  to  him  a  portion  of 
the  value  of  the  animal. 

When  the  disease  is  one  from  which  the  major- 
ity of  the  patients  will  recover,  while  there  can 
be  no  question  as  to  the  right  of  the  community 
to  institute  a  strict  quarantine,  there  may  be  con- 
siderable doubt  as  to  its  right  to  destroy  the  stock 
without  compensation,  and  this  compensation  may 
be  much  closer  to  the  original  value  of  the  stock. 
Although  the  keeping  of  an  animal  afflicted  with 
an  infectious  disease  is  not  per  se  culpable,  still 
under  police  power  the  owner  might  be  compelled 
to  bear  the  expense  of  such  reasonable  quarantine 
as  might  be  ordered.  Under  police  power  we 
sometimes  require  high  licenses,  to  help  pay  for 
the  supervision  of  the  business,  and  we  require 
owners  of  dairies  to  go  to  the  expense  of  erecting 
sanitary  bams,  and  milkhouses  equipped  with  ex- 
pensive machinery.  On  the  other  hand,  if  the 
owner  of  the  diseased  animal  shall  be  so  negligent 
as  to  permit  the  spread  of  the  disease  to  the  stock 
of  others  he  will  be  held  liable  for  the  injury  thus 
sustained.  (§§  112,  211.)  Through  the  negligence 
of  one  man  an  entire  community  may  be  seriously 
damaged.  Under  police  power  the  community 
may  demand  that  the  man  who  insists  upon  keep- 
ing his  diseased  animals  must  insure  the  com- 
munity against  possible  damage.  It  would  there- 
fore seem  that  the  community  would  have  a  per- 
fect right,  by  means  of  proper  legislative  action, 
to  require  that  the  owner  of  stock  which  was 


GOVERNMENTAL  SERVICES  157 

afilicted  with  an  infectious  disease  must  file  an 
indemnity  bond,  of  appropriate  amount,  with  cer- 
tain public  officers  for  the  benefit  of  the  com- 
munity. In  addition,  where  the  amount  of  super- 
vision will  be  considerable,  and  where  the  care 
required  will  be  unusual,  as  compared  with  tempo- 
rary infections,  the  community  should  insist  upon 
the  owner  of  the  stock  paying  for  the  necessary 
expense  of  quarantine.  Rather  than  do  these 
things,  many  owners  of  stock  will  willingly  sur- 
render their  stock  for  destruction,  on  receiving 
a  portion  of  their  value.  This  method  would  de- 
stroy the  less  valuable  stock,  would  provide  for 
the  preservation  of  the  valuable  animals  under 
legitimate  conditions,  and  would  furnish  the  most 
favorable  conditions  under  which  to  make  further 
studies  which  might  lead  to  the  conquering  of  the 
malady. 

114.  Appraisement.  Where  the  statutes  pro- 
vide for  the  payment  of  money  for  animals  de- 
stroyed, they  also  specify  under  what  conditions 
such  appraisement  shall  be  made,  and  by  whom. 
Unfortunately,  too  often  appraisements  are  the 
merest  guesses,  or  they  represent  a  form  of  graft. 
Because  they  offer  themselves  so  readily  for  graft 
they  are  highly  objectionable,  and  such  settlement 
should  be  avoided  if  possible.  It  would  be  far 
better  if  the  statute  providing  for  compensation 
should  provide  a  flat  rate  for  animals  of  the  same 
species  and  disease,  in  lieu  of  which  the  owner 
might  execute  bonds  as  suggested  in  the  previous 
section.  Thus,  for  a  cow  afflicted  with  anthrax 
no  compensation  should  be  given,  while  for  one 
suffering  from  tuberculosis  the  community  might 


158      ESSENTIALS  OF  VETERINARY  LAW 

agree  to  pay  fifty  dollars  in  a  section  where  the 
ordinary  price  for  such  an  animal  in  health  would 
be  from  $75.00  to  $100.00  or  more.  The  flat  rate 
would  afford  less  opportunity  for  graft. 

There  can  be  no  property  right  in  a  nuisance 
per  se.  Where  the  nuisance  disease  has  become 
so  closely  associated  with  the  tissues  of  an  animal 
as  to  be  practically  inseparable,  and  where,  in  con- 
sequence, the  animal  has  become  a  danger  to  the 
community,  the  animal  itself  may  be  also  con- 
sidered a  nuisance  per  se.  When,  therefore,  the 
animal  becomes  infected  with  anthrax  the  owner 
has  thereby  lost  his  property  right  in  the  animal. 
If  he  has  no  property  right,  there  can  be  no  legal 
excuse  for  paying  him  for  his  beast.  There  would 
be  more  justice  in  requiring  him  to  bear  the  ex- 
pense of  the  destruction  of  the  animal,  for  so  long 
as  the  animal  lives  it  will  be  a  source  of  expense, 
and  will  expose  the  owner  to  liability  for  damages 
through  spread  of  the  disease.     (§§  112,  211.) 

In  a  disease  like  that  of  cattle  affecting  the  feet 
and  mouth,  conditions  are  very  different.  An 
appraisement  of  such  a  herd  will  involve  several 
items.  Starting  with  the  original  value  of  the 
stock  before  becoming  infected,  the  appraiser 
should  deduct  the  following  items : 

(1)  Value  of  proportion  which  would  probably 

die. 

(2)  Cost  of  care  of  herd  until  free  from  disease 

(plus  possible  earnings). 

(3)  Depreciation  in  value  of  stock  after  the 

disease. 

(4)  Possibly,  the  cost  of  quarantine  supervision. 

(5)  In  some  cases,  the  amount  which  the  owner 

may  recover  from  the  carcasses. 


GOVERNMENTAL  SERVICES  159 

115.  State  and  National  Officers,  at  Same  Time. 
Because  of  the  conflict  of  jurisdiction  in  matters 
pertaining  to  health,  between  state  and  national 
officers,  and  the  consequent  complication  which 
may  arise ;  and  also  sometimes  in  order  to  gain  the 
advantage  of  the  experience  of  those  of  wide 
observation,  it  is  sometimes  arranged  to  make 
national  officers  deputy  state  officials  (or  less  fre- 
quently, perhaps,  to  give  a  state  officer  the  posi- 
tion of  a  deputy  of  the  federal  official).  In  such 
cases  it  must  be  remembered  that  in  maintaining 
a  quarantine  within  a  state,  or  in  enforcing  local 
measures  for  the  stamping  out  of  a  disease,  the 
officer  is  really  working  as  a  state  officer.  It  would 
seem  proper,  therefore,  that  all  legal  actions  be- 
gun by  or  prosecuted  against  an  officer  so  work- 
ing should  be  in  state  courts.  Owing  to  the  pres- 
ence of  plague  in  New  Orleans  an  ordinance  was 
passed  requiring  the  rat-proofing  of  the  entire 
city.  Assistant  Surgeon  General  Rucker  of  the 
U.  S.  Public  Health  Service,  a  man  with  a  wide 
experience  in  this  line  of  work,  took  charge  of 
the  work  of  extermination.  Action  was  brought 
against  him  by  certain  citizens,  alleging  that  he 
was  overzealous,  arbitrary  and  unreasonable  in 
his  enforcement  of  the  rat-proofing  ordinance ;  and 
an  injunction  was  asked  to  restrain  his  activity. 
The  U.  S.  District  Court,  before  whom  the  mat- 
ter was  brought,  claimed  jurisdiction  on  the 
ground  that  he  was  a  federal  officer.  With  due 
humility  we  are  forced  to  differ  with  the  learned 
court,  although  it  is  a  duty  of  federal  officers, 
according  to  the  Statutes  of  the  United  States, 
to  assist  in  the  enforcement  of  state  quarantine 


160      ESSENTIALS  OF  VETERINARY  LAW 

measures.  The  ordinance  was  enacted  under  the 
authority  of  the  state,  and  it  is  ahnost  universal 
practice  to  recognize  in  such  matters  the  author- 
ity of  the  state  courts.^  ^  Though  in  this  matter 
the  act  was  being  enforced  by  one  who  held  office 
under  the  national  government,  strictly  we  do  not 
believe  that  in  this  he  should  be  regarded  as  such. 
The  court  did  not  issue  the  injunction  asked,'^ 
and  the  Louisiana  supreme  court  later  passed 
upon  the  validity  of  the  ordinance."^^  If  the  fed- 
eral court  did  not  have  jurisdiction  over  the  sub- 
stance of  the  ordinance  it  was  apparently  incom- 
petent to  pass  upon  the  enforcement  of  the  same. 
By  the  Act  of  March  3,  1905,'^2  ^^Tj^g  Secretary 
of  Agriculture  is  authorized  and  directed  to  quar- 
antine any  state  or  territory  or  the  District  of 
Columbia,  and  any  portion  of  any  state  or  terri- 
tory or  the  District  of  Columbia,  when  he  shall 
determine  the  facts  that  cattle  or  other  live  stock 
in  such  state  or  territory  or  District  of  Columbia 
are  affected  with  any  contagious,  infections  or 
communicable  disease. ' '  But  the  expression  ^ '  any 
portion  of  any  state,'*  etc.,  does  not  give  authority 
to  establish  a  quarantine  within  a  state,  but 
against  a  portion  of  a  state.  This  is  apparent 
from  sections  2,  3  and  4  of  this  act,  wherein  it  is 
specially  mentioned  that  shipment  from  the  quar- 
antined portions  of  states  into  other  states  and 
territories  is  prohibited.    The  power  of  Congress 

69  Public  Health,  139.  fi  City    of    New    Orleans    v. 

70  Mrs.  Wid.  John  G.  Kuhl-  Sanford,  69  So.  35. 
man  et  als.  v.  Eucker,  Mch.  15,  72  33  Stat.  1264. 
1915,    30  U.  S.    Public   Health 

Eeports,  1033. 


GOVERNMENTAL  SERVICES  161 

is  over  interstate  commerce,  not  intrastate,  and 
when  it  is  practicable  to  quarantine  against  a  por- 
tion of  a  state,  rather  than  against  an  entire  state, 
the  Secretary  of  Agriculture  has  that  authority. 
The  federal  local  inspector,  in  so  far  as  he  is  en- 
forcing interstate  quarantine  is  a  federal  officer; 
but  his  federal  authority  does  not  cover  services 
in  maintaining  intrastate  quarantine.  Since  his 
authority  does  not  cover  such  work,  neither  should 
he  be  considered  as  under  the  protection  of  the 
federal  courts  in  matters  outside  of  his  authority, 
unless,  possibly,  there  be  an  attempt  on  the  part 
of  the  state  government  to  personally  restrain  him 
from  the  performance  of  his  real  official  duties. 


CHAPTER  VII. 

GOVERNMENTAL  INSPECTION. 


§  120.  Work  of  Veterinarians. 
§  121.  Methods       of       Govern- 
mental  Control. 

DAIRY   BUSINESS 

§  122.  Quality  of  Goods. 

§  123.  Dairy   Inspection. 

§  124.  Confiscation. 

§  125.  Veterinary   Authority   in 

Milk  Industry. 
§  126.  Dairy  Products. 

MEAT    INDUSTRY 

§  127.  Transportation  of  Live 
Stock. 

§  128,  Departmental  Veterina- 
rians. 

§  129.  General  Quarantine  Eeg- 
ulations. 

§  130.  Texas  Cattle  Fever. 

§  131.  Protection  of  Inspectors. 

§  132.  Liability  of  the  Depart- 
ment. 

§  133.  Scabies. 

§  134.  Hog  Cholera  and  Swine 
Plague. 

§  135.  Dourine. 

§  136.  Lip  and  Leg  Ulceration 
(Necrobacilliosis). 

§  137.  Glanders. 

§  138.  Tuberculosis. 


§  139.  Foot  and  Mouth  Dis- 
ease. 

§  140.  Imported  Animals. 

§  141.  Importations  from  North 
America. 

§  142.  Federal  Supervision  at 
Slaughterhouses. 

§  143.  Antemortem  Examina- 
tion. 

§  144.  Postmortem  Examina- 
tion. 

§  145.  Condemnations. 

§  146.  Sterilization. 

§  147.  Disobeying  Orders. 

§  148.  Arbitrariness. 

§  149.  Appeal. 

§  150.  Prosecutions. 

§  151.  Statutes. 

§  152.  Meat  Inspection. 

§  153.  Intrastate  Meat  Indus- 
tries. 

§  154.  Municipal  Control. 

§  155.  State  Regulation. 

§  156.  Conmion  Law  Regula- 
tion. 

BIOLOGIC  SUPERVISION 

§  157.  Biologic  Products. 
§  158.  Governmental     Responsi- 
bility. 
8  159.  Evidence  of  Infection. 


162 


GOVERNMENTAL  INSPECTION  163 

120.  Work  of  Veterinarians.  In  various  phases 
of  the  governmental  work  of  the  city,  state  and 
nation  the  services  of  veterinarians  are  required 
for  inspection  service.  In  the  super\dsion  of 
dairies  and  their  products  veterinarians  are 
needed  to  assure  the  healthfulness  of  the  cattle, 
or  goats,  and  as  a  portion  of  their  duty  they  must 
be  depended  upon  to  give  tuberculin  tests  when- 
ever required.  In  the  matter  of  meat  production 
veterinarians  are  required  to  make  inspections 
before  and  after  slaughtering,  to  detect  diseases 
among  animals,  and  to  exclude  such  meats  as  may 
show  conditions  which  would  endanger  human 
life  were  they  consumed.  In  the  dairy  industries 
the  veterinarians  are  thus  used  by  cities,  states 
and  the  national  government.  In  the  meat  indus- 
try their  most  important  service  is  under  the  fed- 
eral laws,  and  to  a  less  extensive,  but  not  less  im- 
portant degree,  they  may  be  employed  in  some 
cities  and  states.  Veterinarians  also  find  occupa- 
tion in  the  detection  and  restriction  of  animal  dis- 
eases. Their  services  are  also  required  by  the 
national  government  in  the  supervision  of  the 
manufacture  of  biologic  products. 

121.  Methods  of  Governmental  Control.  There 
are  three  methods  possible  in  governmental  con- 
trol over  industries  which  concern  the  people  gen- 
erally. First,  governmental  ownership,  which 
while  especially  applicable  in  such  a  matter  as 
water  supply,  and  though  it  has  been  recom- 
mended  or   suggested   for   milk   supply,^    would 

1  Jethro  Brown,  Underlying 
Principles  of  Modern  Legisla- 
tion, p.  202. 


164      ESSENTIALS  OF  VETERINARY  LAW 

not  at  present  seem  to  be  ordinarily  either  advisa- 
ble or  acceptable  for  American  cities.  Un- 
der this  method  the  municipality  would  own  and 
operate  its  own  dairy  business.  It  is  true  that 
to  a  limited  extent  municipalities  have  tried  to 
manage  the  sale  of  milk,  but  so  far  as  the  writer 
is  aware  they  have  not  attempted  to  own  and 
operate  milk  farms.  On  the  other  hand,  public 
slaughterhouses  have  been  maintained,  but  gen- 
erally as  purely  commercial  concerns,  and  not  for 
health  supervision. 

The  second  method,  much  in  vogue  among  Eng- 
lish governments  both  in  the  British  Isles,  and  in 
the  colonies,  is  through  the  use  of  the  courts,  mak- 
ing dealers  liable  for  any  injuries  sustained  by 
their  patrons.  According  to  this  system  civil 
actions  in  damages  are  brought  against  offenders 
by  those  injured,  without  statutory  enactment,  and 
under  the  usages  of  the  common  law.  ( §  13.)  This 
efficient  aid  in  sanitation  has  been  too  much  neg- 
lected in  the  United  States.  A  dairyman,  or 
dealer  in  animal  foods,  frequently  inins  the  risk 
of  such  harm  as  may  result  from  his  lack  of  care. 
He  may  ignore  statutes,  in  the  hope  that  he  will 
not  be  caught,  or  with  a  calculation  of  the  relative 
financial  advantage  of  paying  occasional  fines, 
rather  than  to  bear  the  cost  of  expensive  equip- 
ment and  operation.  He  may  ignore  the  orders 
of  a  health  department,  and  when  prosecuted  he 
not  seldom  sets  up  the  cry  that  he  is  being  perse- 
cuted, rather  than  prosecuted,  and  he  thereby 
gains  the  sympathy  of  the  jury.  If  fined,  he  still 
may  be  able  to  convince  his  customers  that  it  was 
for  some  technical  and  non-essential  point.    But 


GOVERNMENTAL  INSPECTION  165 

when  action  is  brought  against  him  for  typhoid 
fever,  or  for  scarlet  fever  which  has  been  com- 
municated through  the  agency  of  the  milk,  the 
sympathy  of  the  jury  is  against  the  dairyman,  and 
the  moral  effect  in  the  community  of  an  adverse 
decision  is  strong.  A  fine  imposed  through  a 
prosecution  of  the  health  department  has  little 
deterrent  effect;  but  damages  assessed  for  harm 
done  by  infected  milk  is  injurious  to  his  business. 
A  single  damage  suit,  therefore,  will  have  a  pow- 
erful deterrent  effect,  to  prevent  his  future  lack 
of  care;  and  it  will  influence  all  the  dairymen  of 
the  vicinity  more  than  much  inspection  and  many 
prosecutions.  This  method,  besides  being  more 
effective,  has  the  advantage  that  it  is  less  ex- 
pensive for  the  government,  and  it  does  not  require 
the  enactment  of  special  ordinances,  or  the  issu- 
ance of  special  regulations.  While  one  weakness 
of  ordinances  lies  in  the  fact  that  adjacent 
cities  or  villages  may  adopt  different,  and  even 
conflicting,  regulations,  the  weakness  of  this 
method  consists  in  the  fact  that  it  must  wait  for 
its  operation  until  harm  has  actually  occurred, 
and  this  injury  must  often  result  in  much  sickness 
and  many  deaths  in  the  community  before  the 
proof  is  sufficiently  strong  to  warrant  action.  This 
method,  therefore,  must  be  used  chiefly  as  sup- 
plemental to  the  third  method. 

The  third  method,  and  the  one  universally 
adopted  in  America,  consists  in  governmental 
supervision.  Statutes  and  ordinances  are  enacted, 
generally  requiring  the  issuance  of  licenses,  and 
specifying  under  what  conditions  the  business 
may   be   conducted.     These   licenses   are   issued 


166      ESSENTIALS  OF  VETERINARY  LAW 

under  police  power,  and  they  include  govern- 
mental inspection  to  see  that  the  rules  and  regu- 
lations are  being  properly  observed.  The  weak- 
ness of  this  method  consists  in  the  expense  of 
supervision,  and  the  consequent  opportunity  for 
frequent  evasions  of  the  rules  when  the  inspector 
is  not  present.  Much  depends  upon  the  natural, 
as  well  as  educational,  qualifications  of  the  in- 
spector to  detect  vital  defects,  rather  than  unim- 
portant violations. 

DAIRY   BUSINESS. 

122.  Quality  of  Goods.  Both  the  national  and 
state  governments,  as  well  as  cities  under  permis- 
sion from  the  state  legislatures,  have  frequently 
enacted  statutes  fixing  certain  standards  of  pu- 
rity for  articles  of  food.  While  such  regulations 
pertain  more  to  the  work  of  food  inspectors,  rather 
than  to  that  of  veterinarians,  they  may  also  be  of 
incidental  interest  to  veterinarians.  A  statute  fix- 
ing 12  per  cent  of  butter  fat  for  ice  cream  was 
upheld  in  Iowa;  the  court  permitting  the  sale  of 
an  article  containing  a  smaller  amount,  but  not  as 
ice  cream.2  A  city  may,  under  the  general  wel- 
fare clause,  by  ordinance  regulate  the  conduct  of 
the  milk  business,  but  it  cannot  arbitrarily  pre- 
scribe that  ice  cream  containing  less  than  a  cer- 
tain percentage  of  butter  fat  shall  not  be  sold  at 
all.^  Neither  has  a  city  the  right,  or  an  implied 
power,  to  license  milk  dealers  where  the  state  has 
attempted  to  regulate  the  business,  and  has  re- 

2  State     V.     Hutchinson     Ice  3  Rigbers  v.  City  of  Atlanta, 

Cream  Co.,  147  N.  W.  195.  7  Ga.  App.  411,  66  S.  E.  991. 


GOVERNMENTAL  INSPECTION  167 

quired  a  license  of  all  dealers.^  A  dealer  may  be 
required  to  know  the  quality  of  goods  which  he 
sells.^  A  Minnesota  ordinance  prohibiting  the 
sale  of  cream  with  a  less  percentage '  of  butter 
fat  than  20  was  upheld,^  and  one  in  the  city  of 
Washington  which  required  three  and  one-half 
per  cent  of  butter  fat  was  pronounced  reasonable, 
although  it  did  presume  an  unusual  care  in  the 
selection  and  feed  of  the  cattleJ  The  selection 
of  the  cattle  must  include  inspection  to  insure  the 
healthfulness  of  the  animals,  and  such  care  in 
breeding  that  in  obtaining  the  good  points  evil 
tendencies  may  not  be  intensified.  In  each  of 
these  fields  the  veterinarians  have  occupation  as 
the  employees  of  the  farmers.  Intelligent  breed- 
ing requires  careful  technical  training  such  as 
farmers  seldom  have  had.  Many  other  provisions 
relative  to  the  composition  of  the  product  have 
been  attempted,  generally  with  approval.^ 

123.  Dairy  Inspection.  It  is  generally  agreed 
that  the  governments  have  the  right  to  regulate 
the  milk  and  dairy  business,  and  to  require 
licenses  for  which  fees  are  charged.^  A  board 
has,  or  may  be  given,  power  to  withhold  license 
for  insanitary  conditions.  ^^  When  a  city  has  the 
power  to  regulate  the  business  by  issuing  licenses, 

4  Bear  v.  City  of  Cedar  Eap-  7  Weigand  v.  Dist.  of  Colum- 
ids,  147  Iowa,  341,  126  N.  W.      bia,  22  App.  D.  C.  559. 

324,  27  L.  E.  A.  (N.  S.)  1150.  8  Public  Health,  466-469. 

5  Dist.    of    Columbia  v.   Lyn-  »  State  ex  rel.  Niles  v.  Smith, 
ham,  16  App.  D.  C.  85 ;    Com-      62  Fla.  93,  57  So.  426. 
monwealth     v.     Wheeler,      205  lo  State  ex  rel.  Niles  v.  Smith, 
Mass.  384,  91  N.  E.  415.                  62  Fla.  93,  57  So.  426. 

6  State  V.  Crescent  Creamery 
Co.,  83  Minn.  284,  54  L.  R.  A. 
466. 


168      ESSENTIALS  OF  VETERINARY  LAW 

it  has  also  the  power  to  revoke  a  license,  without 
notice,  and  summarily.^  ^  The  city  of  Asheville, 
N.  C,  passed  an  ordinance  requiring  milk  dealers 
to  take  out  licenses,  for  which  they  were  to  pay 
one  dollar  per  cow.  One  Nettles  refused  to  take 
out  the  license  on  the  grounds  that  his  herd  was 
outside  the  limits  of  the  city;  that  the  fee  was 
excessive;  and  that  he  sold  only  to  one  customer, 
a  creamery.  But  the  necessity  for  inspection  of 
the  dairy  is  not  less  because  the  herd  is  outside 
of  the  city,  and  tlie  expense  thereof  may  be  greater. 
It  is  not  presumed  that  the  cattle  will  be  held  in 
the  city.  It  is  not  sufficient  safeguard  to  depend 
only  on  examinations  of  the  milk  itself.  Danger- 
ous infections  might  thus  be  overlooked.  The 
only  way  in  which  the  municipality  can  protect 
its  citizens  is  by  requiring  license  issued  under 
certain  restrictions,  and  accompanied  by  an  in- 
spection of  the  business  from  start  to  finish. 
Neither  is  the  fact  that  the  milk  was  sold  directly 
only  to  one  customer  a  reason  for  laxity  in  super- 
vision, especially  when  that  one  customer  is  a 
creamery.  The  ordinance  was  upheld.  ^^  Where 
the  dairy  is  within  the  territorial  jurisdiction  of 
the  municipality  certain  methods  may  be  used 
which  are  inapplicable  in  extraten'itorial  jurisdic- 
tions. The  city  is  therefore  forced  to  depend  upon 
its  commercial  jurisdiction  in  the  latter  case,  and 
enforce  it  through  licenses  in  the  form  of  a  modi- 
fied contract.  The  dairyman  agrees  to  do  certain 
things,  in  return  for  which  the  city  gives  him  a 
right  to  sell  his  product  within  the  city.     In  the 

11  State  V,  Milwaukee,  121  N.  12  Asheville    v.     Nettles,    164 

W.  658,  140  Wis.  38.  N.  C.  315,  80  S.  E.  236. 


GOVERNMENTAL  INSPECTION  169 

city  lie  could  be  punished  in  the  police  court, 
should  he  refuse  to  do  the  reasonable  things  speci- 
fied by  ordinances.  It  therefore  happens  that  we 
may  find  in  the  ordinances  relating  to  such  occu- 
pations as  the  milk  business  a  distinction  made 
between  dairies  within  and  without  the  city.  An 
ordinance  recognizing  the  difference  between 
dairies  outside  and  inside  the  municipal  jurisdic 
tion,  and  requiring  a  difference  in  the  manage- 
ment of  the  two,  is  therefore  reasonable.^ ^  But 
**  Necessary  restriction  cannot  sanction  or  cover 
arbitrary  discrimination. ' '  ^^  When  a  health  de- 
partment is  convinced  that  the  conditions  under 
which  the  milk  is  produced  make  it  unsafe  for 
consumption  it  is  the  duty  of  the  department  to 
stop  the  sale  of  the  product  within  its  limits.^^ 
This  does  not  mean  that  harm  will  necessarily 
result  from  the  use  of  such  milk,  but  that  harm 
is  likely  to  follow.  In  this  Bellows  case  the  court 
said :  "  It  is  unreasonable  to  say  that  the  depart- 
ment of  health,  in  exercising  such  power,  renders 
itself  amenable  to  the  charge  of  exercising  extra- 
territorial jurisdiction.  In  notifying  the  cream- 
ery company  not  to  include  the  plaintiff's  milk  in 
its  shipments  to  the  city,  it  was  acting  for  the 
protection  of  the  inhabitants  of  the  city  of  New 
York,  and  therefore  for  local  interests.  There  was 
no  interference  with  the  plaintiff's  conduct  of  his 
farm  or  business,  except  as  he  proposed  to  supply 
milk  to  the  city  of  New  York;  there  was  simply 
an  embargo  laid  on  the  introduction,  within  the 

13  Adams   v.    Milwaukee,    144  i*  Freund,  Police  Power,  640. 

Wis.  371,  129  N.  W.  518;  also,  is  Bellows  v.  Eaynor,  207  N. 

228  U.  S.  572.  Y.  389,  101  N.  E,  181. 


170      ESSENTIALS  OF  VETERINARY  LAW 

city  of  New  York,  of  milk  not  produced  by  him 
under  conditions  specified  by  the  department.  It 
had  the  right  to  exact  from  all  shippers  of  milk 
a  compliance  with  such  conditions  as  would  rea- 
sonably tend  to  a  pure  product  for  the  use  of  the 
citizens  as  a  condition  for  permitting  its  sale  in 
the  city  of  New  York. ' ' 

An  ordinance  forbidding  the  feeding  of  cattle 
on  distillery  slops,  and  prohibiting  the  sale  of  the 
milk  of  cattle  so  fed  was  upheld  as  a  proper  use 
of  police  power.^^ 

Modem  sociologic  and  commercial  conditions 
have  very  materially  changed  the  relationship  of 
the  milk  industry  to  public  health.  Formerly  the 
milk  was  delivered  to  the  customer  within  a  few 
hours  at  the  most  after  milking;  the  cows  were 
generally  within  easy  inspection  by  the  customer; 
and  an  infected  pail  of  milk  could  endanger  few 
persons.  Now  the  milk  for  our  large  cities  must 
be  transported  from  large  areas,  often  outside  of 
the  state  in  which  it  is  consumed.  The  customer 
does  not  even  know,  as  a  rule,  from  what  state  his 
supply  comes.  A  pail  of  milk  which  is  infected 
at  the  milking  may  infect  several  carloads  at  a 
bottling  plant,  and  the  time  between  milking  and 
delivery  is  such  that  there  may  be  a  great  multi- 
plication of  a  few  bacteria.  A  strict  supervision 
of  the  industry  is  therefore  an  urgent  govern- 
mental responsibility. 

It  is  now  generally  recognized  that  bovine  tuber- 
culosis may  be  the  cause  of  much  of  the  disease 
in  the  human  being,  though  this  was  formerly 

16  Johnson    v.    Simonton,    43 
Cal.  242. 


GOVERNMENTAL  INSPECTION  171 

disputed.  It  therefore  becomes  necessary  to  thor- 
oughly examine  the  cattle,  not  only  for  tubercu- 
losis, but  for  other  debilitating,  or  infecting 
diseases.  A  cow  well  advanced  in  tuberculosis  be- 
trays her  condition  on  inspection  without  special 
tests,  but  in  the  earlier  stages  the  most  careful 
physical  examination  may  fail  to  discover  the  in- 
fection. In  these  early  cases  science  demands  that 
the  tuberculin  test  be  made,  and  that  it  be  repeated 
from  time  to  time.  Since  this  necessity  is  recog- 
nized in  science  as  a.  most  reliable,  though  not 
infallible  test,  ordinances  and  legal  regulations 
requiring  that  the  test  be  made  are  generally  up- 
lield.^'^  It  is  a  question  for  the  legislative  (or 
sometimes  executive)  branch  of  the  government 
to  decide  whether  or  not  this  test  shall  be  re- 
quired, and  it  is  not  for  the  court  to  declare  an 
ordinance  unconstitutional  or  void  because  some 
other  method,  such  as  pasteurization  may  appear 
better. ^^  The  early  detection  of  infected  animals 
is  really  for  the  interest  of  the  farmers,  as  well  as 
the  consumers  of  the  milk,  but  Illinois  farmers 
had  been  purchasing  infected  cattle  from  other 
states  to  such  a  degree  that  they  opposed  the  en- 
forcement of  such  a  rule  by  the  city  of  Chicago, 
and  under  the  leadership  of  Shurtleff  secured  the 
passage  of  a  statute  in  Illinois  forbidding  cities 
from  making  such  a  requirement.^^  The  legis- 
lature had  an  unquestioned  authority  to  enact  such 

IT  Borden  V,  Board  of  Health,  16;   Hawkins  v.   Hoye    (Miss.), 

Montclair,  81  N,  J.  L.  218,  80  66  So.  741. 

Atl.   30;    Adams  v.  Milwaukee,  is  Nelson  v.  Minneapolis,  112 

144  Wis.  371,  12&  N.  W.  518;  Minn.  16. 

sustained,   228  U,  S.  572;   Nel-  1 9  Session       Laws,       Illinois, 

son   V.   Minneapolis,   112   Minn.  1911,  p.  6. 


172      ESSENTIALS  OF  VETERINARY  LAW 

a  statute  inimical  to  the  public  weal,  and  its  pro- 
hibition was  binding  upon  the  state.  The  legis- 
lature which  passed  it,  the  leader  who  engineered 
it  and  the  governor  who  failed  to  veto  it,  are  con- 
jointly entitled  to  the  discredit  of  the  enactment. 

Since  such  requirements  as  the  making  of  the 
tuberculin  test  depend  for  their  trustworthiness 
upon  the  careful  technique  of  the  operation, 
to  remove  as  much  as  possible  the  danger  of  un- 
professional carelessness  or  dishonesty  of  unreg- 
ulated practitioners,  such  ordinances  or  statutes 
should  require  that  the  test  be  made  only  by  offi- 
cial veterinarians. 

Since  milk  infections  are  generally  bacterial, 
condemnations  of  milk  are  frequently  made,  and 
sustained  in  court,  because  of  the  large  number 
of  bacteria  contained,  though  none  may  be  proven 
dangerous  to  health.  The  presence  of  such  ab- 
normally large  numbers  indicates  a  lack  of  care 
in  the  handling  of  the  product.  To  guard  against 
infection,  and  to  assist  in  tracing  responsibility, 
various  regulations  have  been  sustained,  such  as, 
requiring  users  to  wash  the  milk  bottles,  prohibit- 
ing the  use  of  milk  containers  for  other  purposes, 
or  the  having  in  possession  by  milkmen  of  bottles 
which  had  not  been  washed.^^  The  Massachusetts 
court  refused  sanction  to  an  ordinance  which  pro- 
hibited the  sale  of  ''open"  milk,2i  ^^^^  ^j^g  neces- 
sity for  such  prohibition  is  now  so  generally 
recognized  that  it  would  probably  be  sustained. 
The  city  of  Covington  prohibited  the  sale  of  less 

20  People  V.  Frudenberg,   140  21  Commonwealth     v.      Drew, 

N.    Y.    Supp.    17;    Polinsky   v.       208  Mass.  493. 
People,  73  N.  Y.  65. 


GOVERNMENTAL  INSPECTION  173 

than  one  gallon  in  any  but  transparent  receptacles, 
and  the  ordinance  was  sustained.-^  The  Chicago 
ordinance  requiring  the  name  of  the  dealer  to  be 
blown  or  stamped  on  the  bottle  was  upheld.^ ^ 

While  condemnation  of  milk  on  account  of  bac- 
terial evidence  generally  depends  upon  a  large 
content,  this  is  not  always  so.  The  presence  of 
the  colon  bacillus  is  of  itself  conclusive  evidence 
of  fecal  infection,  and  its  presence  is  therefore 
sufficient  for  condemnation.^^  In  a  like  manner, 
exposure  to  a  liability  of  infection  with  the  germs 
of  such  diseases  as  typhoid  or  scarlet  fever,  or  of 
diphtheria,  or  the  finding  of  tubercle  bacilli  in 
the  milk  should  be  held  as  sufficient  warrant  for 
the  prohibition  of  sale  from  that  source  until  dan- 
ger had  passed. 

124.  Confiscation.  Milk  is  not  an  article  which 
may  be  impounded  and  preserved  without  un- 
necessary expense.  The  fact  that  it  has  been 
offered  for  sale,  or  that  an  attempt  to  ship  it  con- 
trary to  law  has  been  made,  is  sufficient  justifica- 
tion for  its  confiscation  and  destruction.-^  To 
simply  refuse  such  milk  admission  to  the  city 
would  leave  the  violator  free  to  attempt  another 

22  Covington  v.  Kollman,  156  24  Dade  v.  United  States,  40 
Ky.  351,  160  S.  W.  1052.  App.  D.  C.  94. 

23  Chicago  V.  Bowman  Dairy  25  Adams  v.  Milwaukee,  144 
Co..  234  III.  294.  The  Ohio  Wis.  371,  129  N.  W.  518;  sus- 
statute  providing  for  the  sei-  tained,  228  U.  S.  572 ;  Nelson 
zure  and  confiscation  of  bottles  v.  Minneaj^olis,  112  Minn.  16; 
bearing  a  distinctive  name,  Blazier  v.  ^liller,  10  Hun,  435; 
blown  or  marked  in  them,  when  Deems  v.  Mayor,  80  Md.  164; 
found  in  the  possession  of  others  Shivers  v.  Newton.  45  N.  J.  L. 
was    declared    unconstitutional,  469. 

because  more  extensive  than 
title  implied.  State  v.  Schmuck, 
77  Ohio,  438,  83  N.  E.  797. 


174      ESSENTIALS  OF  VETERINARY  LAW 

evasion  of  the  law,  and  get  his  product  into  con- 
sumption in  some  other  place  or  way. 

125.  Veterinary  Authority  in  Milk  Industry. 
A  veterinarian's  governmental  authority  cannot 
extend  beyond  the  limits  of  the  authority  of  the 
body  under  whom  he  has  been  appointed.  (§99.) 
The  foregoing  outline  shows  that  the  authority  of 
a  veterinarian  in  the  conduct  of  the  milk  business 
is  very  slight  and  inconspicuous,  as  compared 
with  that  of  other  inspectors.  As  a  city  employee 
he  has  no  authority  outside  of  the  city  by  which  he 
has  been  appointed,  and  in  the  dairy  district  he 
acts  in  an  advisory  capacity.  Of  course  his  advice 
as  to  the  condition  of  a  dairy  may  cause  the  city 
to  refuse  the  product  of  the  dairy.  A  state  veteri- 
narian has  authority  within  his  own  state,  and  his 
advice  may  enable  the  state  officers  to  exclude  milk 
from  certain  outside  territory.  The  veterinarian 
employed  by  the  federal  government  has  no 
authority  except  with  regard  to  products  intended 
for  interstate  or  foreign  shipment. 

126.  Dairy  Products.  It  is  now  known  that  the 
germs  of  tuberculosis  and  typhoid  fever  may 
remain  viable  for  a  time  in  butter  and  cheese.  The 
aging  of  cheese  before  sale  tends  to  lessen  the 
danger  in  that  article  from  those  bacteria,  but  it 
is  liable  to  another  infection  with  a  highly  poison- 
ous germ — tyrotoxicon.  These  daiiy  products  are 
frequent  and  extensive  subjects  of  interstate  com- 
merce, and  to  a  smaller  degree  they  enter  foreign 
commerce.  It  is  practically  impossible  to  effi- 
ciently supervise  the  commerce  without  attention 
to  the  manufacture.  It  is  entirely  within  the 
authority  of  Congress  to  enact  reasonable  statutes 


GOVERNMENTAL  INSPECTION  175 

which  would  safeguard  the  manufacture  and  inter- 
state or  foreign  sale  of  the  products.  Because  this 
trade  is  so  largely  within  the  province  of  Congress, 
in  order  to  harmonize  methods,  and  to  increase 
efficiency,  Congressional  action  is  preferable  to 
the  leaving  of  the  regulation  to  individual  states. 
A  state  whose  product  is  largely  shipped  out  of 
its  limits  is  not  likely  to  put  efficient  restrictions 
upon  the  business. 

THE    MEAT    INDUSTRY. 

127.  Transportation  of  Live  Stock.  Congress 
having  authority  over  interstate  and  foreign  com- 
merce has  placed  the  supervision  of  the  transpor- 
tation of  live  stock  under  the  supervision  of  the 
Department  of  Agriculture,  under  which  the 
Bureau  of  Animal  Industry  takes  immediate 
charge  and  supervision.  Having  charge  of  inter- 
state commerce  means  also  that  it  has  supervision 
over  the  means  used  for  transportation,  and  this 
includes  the  railways  and  steamboat  lines,  includ- 
ing cars  used  in  the  business  and  the  pens  in  which 
the  animals  are  collected  for  shipment,  or  are  un- 
loaded, either  for  feeding  or  for  sale.  A  single 
cow,  infected  with  the  Texas  cattle  ticks,  though 
only  intended  for  shipment  within  the  state,  must 
be  under  the  general  supervision  of  this  bureau, 
for  she  may  infect  pens  and  cars  used  in  the  inter- 
state business;  and  to  permit  this  one  animal  to  be 
transported  within  a  state  without  inspection 
would  endanger  the  wider  traffic.  Much  harm 
might  be  done  before  the  possibility  of  danger 
would  be  realized.    Incidentally,  therefore,  the  con- 


176      ESSENTIALS  OF  VETERINARY  LAW 

trol  over  the  interstate  traffic  includes  also  an 
authority  over  the  strictly  intrastate  transporta- 
tion. 

128.  Departmental  Veterinarians.  Inspectors 
are  appointed  by  the  department  after  a  civil  serv- 
ice examination,  to  which  are  admitted  only  the 
graduates  of  veterinary  schools  of  approved  stand- 
ing, having  courses  of  at  least  three  years  before 
a  degree  is  conferred.  These  inspectors  supervise 
the  shipment  and  inspection  of  the  cattle,  and 
their  final  slaughter  for  interstate  and  foreign  com- 
merce, and  make  the  necessary  post  mortem  exam- 
ination. 

129.  GenerEil  Quarantine  Regulations.  Under 
the  acts  of  1884, 1903  and  1905,  whenever  the  Sec- 
retary of  Agriculture  shall  determine  that  the  live 
stock  of  any  section  are  infected  with  a  contagious 
or  infectious  disease,  it  becomes  his  duty  to  declare 
a  quarantine,  either  upon  the  entire  state,  or  upon 
such  portion  as  may  seem  advisable.  In  so  far  as 
the  state  quarantine  area  seems  sufficiently  pro- 
tective it  is  the  custom  of  the  Department  to  adopt 
the  same.  The  transportation  or  driving  of  quar- 
antined animals  from  the  quarantine  area,  or  the 
peraiitting  them  to  drift,  is  strictly  prohibited, 
except  under  regulations  approved  by  the  depart- 
ment. All  pens,  or  means  of  conveyance,  which 
have  been  used  by  infected  animals,  or  by  those 
exposed  to  infection,  must  be  thoroughly  disin- 
fected by  approved  methods  before  they  are  used 
for  other  animals.  This  includes  also  feeding  pens, 
stockyards,  chutes  and  alleys  used  by  infected  or 
exposed  animals.  When  deemed  necessary,  the 
interstate  shipments  of  live  stock  will  be  stopped 


GOVERNMENTAL  INSPECTION  177 

for  inspection  and  disposition,  and  all  persons  hav- 
ing the  animals  in  charge  must  submit  to  the  in- 
spection of  the  stock.  Whenever  in  order  to  pre- 
vent the  spread  of  a  disease  it  becomes  necessaiy 
to  slaughter  any  diseased  or  exposed  stock  the 
United  States  is  authorized  by  law  to  purchase 
such  live  stock,  and  the  compensation  is  either  by 
jDrivate  agreement  with  the  owner,  or  by  an  ap- 
praisement in  the  manner  provided  by  the  law  of 
the  state  in  which  the  owner  has  his  legal  resi- 
dence. In  practice  it  is  customaiy  for  the  state 
and  the  nation  to  share  in  this  compensation.  In- 
spections are  made  by  inspectors  of  the  Depart- 
ment, in  the  Bureau  of  Animal  Industry,  and  such 
inspection  and  certification  as  may  be  required 
will  be  performed  without  the  payment  of  inspec- 
tion fees.  Shipments  from  a  quarantined  area,  not 
accompanied  with  a  certificate  of  an  inspector 
showing  freedom  from  disease  or  exposure  thereto, 
are  not  permitted  to  be  diverted  for  feeding,  stock- 
ing, or  breeding  purposes,  unless  first  inspected 
and  certified  by  an  inspector  of  the  bureau.  Cer- 
tificates of  inspection  and  treatment  must  accom- 
pany the  stock  to  the  destination,  and  they  then 
become  the  property  of  the  transportation  com- 
pany and  must  be  filed  for  reference. 

No  dead  animal  may  be  shipped,  or  offered  for 
shipment,  interstate,  in  the  same  car  with  live 
animals  from  the  original  point  of  shipment  in  any 
state,  teri'itory,  or  the  District  of  Columbia. 

130.  Texas  Cattle  Fever.  The  quarantine 
against  certain  areas  for  the  splenic,  or  Texas  cat- 
tle, fever  is  in  force  throughout  the  year.  Inter- 
state shipments  of  cattle  from  the  quarantined 


178      ESSENTIALS  OF  VETERINARY  LAW 

area  may  be  made  at  any  time  by  boat  or  rail  for 
immediate  slaughter,  provided  that  the  permission 
has  first  been  obtained  from  the  proper  official  of 
the  state  (or  District  of  Columbia),  at  the  place 
of  destination,  under  certain  strict  regulations. 
They  must  not  be  handled  over  platforms,  chutes 
or  alleys  used  for  horses,  mules  or  asses,  nor  for 
cattle  from  noninfected  areas.  The  construction 
of  the  alleys,  chutes,  pens,  etc.,  is  strictly  regu- 
lated to  prevent  any  possible  contact  with  other 
animals,  and  the  pens  must  be  plainly  marked  with 
signs, '' QUARANTINED  YARDS,"  or  ''QUAR- 
ANTINED PENS. ' '  Any  cattle  driven  into  these 
specially  reserved  pens  must  be  treated  as  if  ex- 
posed. Cars  or  boats  used  in  the  transportation 
of  such  animals  must  be  conspicuously  marked. 
Cattle  from  noninfected  areas,  needing  to  be  un- 
loaded for  feed  and  water,  within  the  infected 
territory,  can  only  be  so  handled  in  specially  re- 
served pens,  properly  labeled  ''NONINFECTIOUS 
PENS,"  and  kept  free  from  possible  infection. 
Cattle  from  noninfectious  areas,  infested  with  the 
tick,  Margaropns  annulatns,  must  be  regarded  as 
infected  cattle,  and  subject  to  the  regulations 
therefor.  Cattle  from  infected  areas,  or  other  cat- 
tle infected  with  the  ticks,  after  having  been  prop- 
erly dipped  twice,  at  intervals  of  from  5  to  12  days, 
by  the  approved  method,  may  be  certified  as  free 
from  infection  with  splenic  fever,  and  may  be 
moved  interstate  for  any  purpose.  If  dipped  once 
they  may  be  shipped  as ' '  dipped  ticky  cattle, '  *  and 
if  examined  and  found  free  in  a  market  centre  pro- 
vided with  proper  dipping  facilities,  and  there 
dipped  by  an  inspector  within  from  5  to  12  days 


GOVERNMENTAL  INSPECTION  179 

from  previous  treatment,  they  may  be  shipped 
interstate  for  any  purpose,  under  regulations. 
Cattle  located  in  areas  where  tick  eradication  is 
being  conducted  by  the  bureau  in  cooperation  with 
the  state  authorities,  and  which  are  on  premises 
known  by  the  inspectors  to  be  free  from  ticks, 
may,  upon  inspection  and  certification  at  a  suit- 
able season  be  moved  interstate  for  any  puipose, 
without  dipping,  provided  that  they  can  be  moved 
to  the  transportation  line,  or  free  area  without 
exposure  to  infection. 

Horses,  mules  or  asses  which  are  infested  with 
the  ticks  must  receive  the  same  treatment  as  is 
provided  for  the  cattle. 

Before  accepting  a  shipment  of  cattle  from  a 
quarantined  area  to  an  unquarantined  point  in 
another  state,  the  transportation  company  must 
obtain  from  the  shipper  a  signed  statement  show- 
ing the  purpose  for  which  the  cattle  are  shipped. 

The  dipping  of  cattle  by  a  railroad  company 
transporting  them,  under  quarantine  regulations 
prescribed  by  laAv,  is  so  intimately  connected  witli 
the  matter  of  transportation,  that  the  charges  may 
be  fixed  at  a  reasonable  sum  to  be  paid  by  the 
shippers;  and  the  matter  of  fixing  the  charges  may 
properly  be  made  by  the  Corporation  Commission, 
in  Oklahoma.2^ 

Cattle  must  not  be  transported,  driven,  nor 
allowed  to  drift,  from  a  quarantined  area  to  an- 
other portion  of  the  same  state  outside  of  the 
quarantined   area.     This  important  rule  of  the 

20  Midland  Valley  E.  E.  Co. 
V.  State,  35  Okla.  672,  130  Pae. 
803. 


180      ESSENTIALS  OF  VETERINARY  LAW 

Department  the  nation  has  no  legal  authority  to 
directly  enforce ;  but  what  it  cannot  do  directly  it 
may  do  indirectly.  If  a  single  county  be  quaran- 
tined in  a  state,  and  the  state  supervision  and  en- 
forcement of  regulations  is  so  lax  that  a  cow  is 
permitted  to  go  outside  of  the  quarantined  area, 
it  becomes  the  duty  of  the  Secretary  to  so  extend 
the  area  under  federal  quarantine  that  danger 
would  be  eliminated.  In  the  place  of  a  single 
county  he  might  quarantine  the  whole  state. 

131.  Protection  of  Inspectors.  A  shipment  of 
cattle  from  the  far  southwest  was  about  to  be 
made.  The  cattlemen  were  impatient  to  be  re- 
lieved of  their  responsibility,  and  to  have  a  good 
time.  The  inspection  was  almost  finished  when 
the  comparatively  young  tenderfoot,  called  offi- 
cially an  inspector,  found  one  of  the  ticks.  He 
ordered  the  entire  bunch  held  for  dipping.  The 
result  may  be  imagined,  though  fortunately  no 
serious  harm  resulted.  The  inspector  held  firm. 
Realizing  the  necessity  for  special  precautions 
Congress  inserted  the  following  paragraph  into 
the  act  of  1905. 

*'Sec.  5.  That  every  person  who  forcibly  as- 
saults, resists,  opposes,  prevents,  impedes,  or  inter- 
feres with  any  officer  or  employee  of  the  Bureau 
of  Animal  Industry  of  the  United  States  Depart- 
ment of  Agriculture  in  the  execution  of  his  duties, 
or  on  account  of  the  execution  of  his  duties,  shall 
be  fined  not  less  than  one  hundred  dollars  nor  more 
than  one  thousand  dollars,  or  be  imprisoned  not 
less  than  one  month  or  more  than  one  year,  or  by 
both  the  fine  and  imprisonment ;  and  every  person 
who  discharges  any  deadly  weapon  at  any  officer 


GOVERNMENTAL  INSPECTION  181 

or  employee  of  the  Bureau  of  Animal  Industry  of 
the  United  States  Department  of  Agriculture,  or 
uses  any  dangerous  or  deadly  weapon  in  resisting 
him  in  the  execution  of  his  duties,  with  intent  to 
commit  a  bodily  injury  upon  him,  or  to  deter  or 
prevent  him  from  discharging  his  duties,  or  on 
account  of  the  performance  of  his  duties,  shall, 
upon  conviction,  be  imprisoned  at  hard  labor  for 
a  term  not  more  than  five  years,  or  fined  not  to 
exceed  one  thousand  dollars."  (The  words  "or 
both  fine  and  imprisonment"  should  have  been 
added  to  this  paragraph.) 

In  this  connection  it  is  necessary  to  remember 
that  there  may  be  two  or  more  distinct  criminal 
acts  involved  in  a  single  physical  deed.  The  sec- 
tion of  law  quoted  above  related  not  to  a  resistance 
offered  to,  nor  to  an  assault  upon,  a  man,  but  upon 
an  officer  or  employee  of  the  bureau ;  and  with  rela- 
tion to  his  work  under  the  authority  of  that 
bureau.  For  this  the  offender  would  be  tried  be- 
fore a  United  States  Court;  but  he  would  also  be 
subject  to  trial  under  the  laws,  and  before  the 
courts  of  the  state  in  which  the  act  was  committed 
for  his  opposition  to,  or  attack  upon  the  man. 
His  influence  in  state  politics  might  sometimes 
give  an  intending  obstructor  a  degree  of  confi- 
dence, but  the  strength  of  the  nation  may  not  be 
lightly  put  aside. 

132.  Liability  of  the  Department.  The  Depart- 
ment of  Agriculture  does  not  assume  any  liability 
as  to  loss  of  stock  in  treatment.  It  is  the  duty  of 
shippers  to  see  that  their  animals  are  free  from 
infectious  disease  before  they  are  offered  for  ship- 
ment.   Shippers  of  animals  infected  with  disease 


182      ESSENTIALS  OF  VETERINARY  LAW 

subject  to  quarantine  expose  themselves  to  prose- 
cution for  violations  of  laws,  and  to  actions  in  dam- 
ages for  such  injury  as  may  be  shown.  The  dipping 
of  animals,  or  other  treatment  to  remove  danger  of 
the  spread  of  infection,  when  done  under  the  super- 
vision of  the  bureau,  is  a  strictly  governmental 
action,  and  for  general  protection.  The  State  (and 
that  term  means  nation  as  well  as  state),  cannot 
be  sued  in  tort  (§96),  and  any  injury  suffered,  or 
loss  sustained  by  a  citizen  through  such  govern- 
mental operations  must  be  borne  without  recourse. 

133.  Scabies.  The  regulations  relative  to  sca- 
bies in  cattle  or  sheep  are  practically  the  same  as 
for  splenic  fever,  though  the  disinfectants  used  in 
the  dip  are  different. 

134.  Hog  Cholera  and  Swine  Plague.  No  swine 
which  are  afflicted  with  hog  cholera  or  swine 
plague  may  be  lawfully  transported,  trailed, 
drifted,  or  driven  from  one  state  to  another. 
Diseased  swine  in  the  stockyards  must  be  con- 
demned and  slaughtered.  Exposed  healthy  swine 
may  be  shipped  to  a  slaughtering  centre  for  im- 
mediate slaughter,  in  cars  properly  marked.  Swine 
intended  for  other  purposes  than  immediate 
slaughter  may  be  shipped  from  stockyards,  sub- 
ject to  the  requirements  of  the  state  of  destination, 
after  being  examined  and  found  free  from  con- 
tagious or  infectious  disease,  and  after  treatment 
by  approved  methods  by  competent  veterinarians. 

135.  Dourine.  Horses,  jacks,  and  mules  in- 
tended for  interstate  shipment  must  be  examined 
by  an  inspector  and  found  free  from  dourine. 
Horses  and  jacks  are  mentioned  in  the  B.  A.  I. 
Order  210,  effective  July  1, 1914;  but  the  fact  hav- 


GOVERNMENTAL  INSPECTION  183 

ing  been  demonstrated  by  the  work  of  the  hygienic 
laboratory  of  the  Canal  Zone  that  the  disease  is 
transmitted  by  flies  in  many  instances,  and  that 
mules  are  also  liable  to  the  infection,  mules  also 
must  be  included  in  the  inspection,  at  least  during 
the  summer  months.  Where  there  has  been  a  pos- 
sible exposure  to  infection  within  eighteen  months 
all  interstate  shipments  are  prohibited.  Diseased 
animals  are  generally  condemned  and  killed.  The 
Department  of  Agriculture  cooperates  with  state 
governments,  and  assumes  one  half  of  the  ap- 
praised valuation  of  the  animal  condemned,  pro- 
vided, that  the  diagnosis  has  been  made  by  ap- 
proved laboratory  methods ;  that  the  owner  agrees, 
and  signs  a  receipt  in  full;  and  that  the  Depart- 
ment's portion  of  the  valuation  does  not  exceed 
one  hundred  dollars.  In  view  of  the  curative  and 
preventive  results  produced  in  the  work  of  the 
hygienic  laboratory  of  the  Canal  Zone,  it  is  not 
impossible,  should  the  results  be  proven  reliable, 
that  the  killing  of  such  animals  may  be  discon- 
tinued. 

136.  Lip  and  Leg  Ulceration  (NecrobacilUosis) . 
Animals  showing  the  disease  in  more  than  one  tis- 
sue, or  with  pus  fonnation,  may  not  be  moved 
interstate;  but  mild  or  inactive  cases,  treated  by 
veterinarians  of  the  Department,  may  be  so  moved. 

137.  Glanders.  Horses,  mules,  or  asses,  showing 
glanders  by  physical  examination  or  by  the  mallein 
test,  may  not  be  moved  interstate. 

138.  Tuberculosis.  Cattle  or  swine  afflicted  with 
tuberculosis,  as  disclosed  by  physical  examination 
or  by  the  tuberculin  test,  may  not  be  moved  inter- 
state.   Cattle  may  not  be  moved  from  an  area 


184      ESSENTIALS  OF  VETERINARY  LAW 

quarantined  for  tuberculosis,  except  for  immedi- 
ate slaughter,  unless  found  free  from  the  disease 
by  the  tuberculin  test,  and  accompanied  by  their 
tuberculin  test  chart.  Cattle  originating  in  prem- 
ises which  have  been  cleaned  of  tuberculosis  under 
the  supervision  of  an  inspector  of  the  bureau,  or 
a  cooperating  state  inspector  may  be  moved  inter- 
state for  any  purpose  (subject  to  a  re-examina- 
tion should  the  premises  later  show  infection). 
Cattle  within  the  quarantined  area,  not  visibly 
diseased  or  known  to  be  so  affected,  and  which 
are  intended  for  feeding  or  grazing  purposes,  may, 
on  permit  issued  by  an  inspector  of  the  bureau,  be 
shipped  interstate,  subject  to  such  restrictions  as 
may  be  imposed  by  the  state  of  destination.  Cattle 
from  areas  quarantined  for  tuberculosis  which  are 
not  visibly  diseased,  may  be  shipped  interstate 
for  immediate  slaughter  in  cars  so  marked. 

139.  Foot  and  Mouth  Disease.  For  various  rea- 
sons, the  regulations  used  for  the  restriction  of  the 
foot  and  mouth  disease  are  less  permanent  in  char- 
acter than  those  for  the  other  infectious  diseases. 
The  nature  of  the  germ,  and  its  manner  of  com- 
munication, are  less  definitely  known.  In  conse- 
quence the  regulations  must  of  necessity  show  an 
element  of  experimental  uncertainty.  Infected 
animals  cannot  be  shipped.  Other  animals  when 
shipped  must  bear  with  them  certificates  or  affi- 
davits of  owners  showing  that  they  have  been  in 
the  district  from  which  shipped  for  sixty  days 
before  shipment,  and  that  they  have  not  recently 
been  in  a  public  stock  yard.  The  quarantined 
area  is  divided,  by  the  last  orders  issued,  into  four 
sub-areas.      (1)  Closed  area;  into  which  cattle, 


GOVERNMENTAL  INSPECTION  185 

sheep  and  other  ruminants,  and  swine  can  only  be 
shipped  for  immediate  slaughter;  and  from  which 
interstate  and  foreign  movement  of  such  animals 
is  prohibited;  and  the  movements  of  dressed  car- 
casses of  such  animals,  the  hides,  skins,  wool, 
horns,  or  hoofs  of  such  animals,  or  of  hay,  straw, 
similar  fodder,  manure,  litter,  or  bags  or  similar 
containers  which  have  been  used  for  stock  feed  is 
restricted. 

(2)  Exposed  area:  Into  which  cattle,  and  other 
ruminants,  and  swine,  may  be  moved  for  any  pur- 
pose; and  from  which  those  animals  may  be  moved 
for  immediate  slaughter  after  examination  certifi- 
cation; and  from  which  the  movements  of  dressed 
carcasses,  hides,  etc.,  and  fodder  is  restricted. 

(3 )  Modified  area :  From  which  interstate  move- 
ment of  ruminants  and  swine  is  permitted  for  im- 
mediate slaughter,  without  previous  inspection,  to 
points  in  the  quarantined  area;  into  which  such 
animals  may  be  moved  for  any  purpose ;  and  from 
which  movements  of  dressed  carcasses,  hides,  fod- 
der, etc.,  is  permitted  without  restriction  other 
than  usual. 

(4)  Restricted  area:  From  which  cattle  and 
other  ruminants  and  swine  are  permitted  to  move 
for  immediate  slaughter  to  points  in  free  or  closed 
areas;  or  for  any  purpose  to  any  point  in  the  quar- 
antined area  other  than  closed  sections;  and  into 
which  animals  may  be  moved  for  any  purpose 
whatever;  and  from  which  dressed  carcasses,  etc., 
may  be  moved  without  other  than  ordinary  restric- 
tions. 

A  free  area  is  one  outside  of  the  quarantined 
districts. 


186      ESSENTIALS  OF  VETERINARY  LAW 

140.  Imported  Animals.  With  the  approval  of 
the  Secretary  of  the  Treasury,  certain  ports  are 
named  by  the  Secretary  of  Agriculture  for  the 
reception  of  animals  imported  from  other  lands. 
There  are  certain  general  regulations  as  to  their 
reception.  Hiorses,  imported  from  points  outside 
North  America,  must  be  accompanied  with  cer- 
tificates from  competent  veterinarians  stating 
that  the  horses  have  been  examined  and  found  free 
from  dourine  or  other  infectious  diseases;  and  affi- 
davits must  be  made  showing  that  they  have  not 
recently  been  exposed  to  infectious  disease.  They 
must  then  be  examined  by  an  inspector  of  the 
Bureau  of  Animal  Industiy.  Infected  animals  may 
be  excluded  or  quarantined.  No  hay  or  other  for- 
age, or  straw,  accompanying  horses  from  the  con- 
tinent of  Europe  may  be  landed  until  it  has  been 
disinfected  as  the  inspector  may  prescribe.  All 
horses  imported,  aside  from  points  in  North  Amer- 
ica, are  subject  to  quarantine. 

Ruminants  and  swine  must  be  accompanied  by 
affidavits  showing  that  the  animals  have  been  con- 
tinuously in  the  district  from  which  shipped  for 
the  preceding  six  months,  and  that  no  infectious 
disease  exists  there  among  such  animals.  This 
does  not  apply  to  animals  from  North  America. 
Cattle,  or  other  ruminants,  or  swine  from  conti- 
nental Elurope  must  be  shipped  from  certain  desig- 
nated points. 

Cattle  imported  from  any  point  except  from 
North  America,  Great  Britain,  Ireland,  and  the 
Channel  Islands,  are  subject  to  a  quarantine  of 
not  less  than  90  days  from  date  of  clearance  of 
ship.    Sheep  and  other  ruminants  and  swine  are 


GOVERNMENTAL  INSPECTION  187 

subject  to  a  quarantine  of  not  less  than  15  days; 
and  the  period  of  quarantine  for  cattle  from  Great 
Britain,  Ireland  and  the  Channel  Islands  must  be 
not  less  than  30  days;  but  cattle  and  sheep  intended 
for  immediate  slaughter  may  be  landed,  under 
certain  restrictions,  without  quarantine.  All  cat- 
tle six  months  old  or  over,  imported  from  Great 
Britain,  Ireland,  and  the  Channel  Islands,  and 
which  are  subject  to  quarantine,  must  be  tested 
with  tuberculin  by  an  inspector  of  the  bureau, 
either  before  shipment,  or  after  arrival  at  the  quar- 
antine station.  Other  cattle  are  tested  in  this 
country. 

A  person  desiring  to  import  ruminants  or  swine 
from  any  point  outside  of  North  America  must 
obtain  two  permits,  stating  the  number,  and  the 
kind  of  animals  to  be  imported;  one  giving  the 
date  and  the  port  of  shipment,  for  the  consul  at 
that  port ;  and  the  other  stating  the  port,  and  prob- 
able date  of  arrival.  After  three  weeks  from  dates 
set,  the  permits  are  void. 

Dogs,  except  those  classed  as  house  dogs,  may 
be  quarantined  by  the  inspector  for  two  weeks  to 
determine  the  presence  or  absence  of  tapeworms. 
If  found  infected  they  must  remain  in  quarantine 
under  treatment. 

141.  Importations  from  North  America.  Ani- 
mals admitted  in  bond  for  shipment  in  export  are 
subject  to  inspection  at  point  of  entry.  Animals 
for  immediate  slaughter  must  be  consigned  to  some 
recognized  slaughtering  centre,  and  must  be 
slaughtered  within  two  weeks  from  date  of  entry. 
Animals  imported  from  Canada  must  either  be 
accompanied  by  satisfactory  evidence  of  freedom 


188      ESSENTIALS  OF  VETERINARY  LAW 

from  infectious  disease,  or  quarantined  under  the 
supervision  of  an  inspector  of  the  bureau;  but 
horses  driven  or  ridden  in  for  a  period  of  not  more 
than  three  days,  or  when  returning  after  an  ab- 
sence in  Canada  of  not  more  than  three  days,  are 
not  subject  to  such  restrictions.  Horses  belonging 
to  Indian  tribes,  settlers  and  immigrants,  or  in 
connection  with  stock  raising  or  mining,  and  those 
intended  for  temporary  stay  not  to  exceed  two 
weeks,  may  be  admitted  without  inspection  upon 
written  permission  of  the  Secretary  of  Agricul- 
ture ;  otherwise  they  must  be  inspected  at  point  of 
entry. 

The  importation  of  tick  infested  horses  from 
Mexico  is  generally  prohibited  until  after  satis- 
factory treatment.  All  ruminants,  swine  or  horses 
imported  from  Mexico  must  be  free  from  infectious 
disease,  but  tick  infested  cattle  may  be  shipped  for 
immediate  slaughter  to  points  in  Texas.  Unless 
accompanied  by  satisfactoiy  evidence  of  freedom 
from  exposure  to  infectious  disease  the  animals 
will  be  quarantined. 

142.  Federal  Supervision  at  Slaughterhouses. 
The  federal  control  over  interstate  and  foreign 
transportation  of  animals  is  exclusive,  and  inci- 
dentally this  practically  includes  intrastate  move- 
ments as  well.  In  supervision  of  the  slaughtering 
industry  the  federal  supervision  is  distinct  from 
that  which  should  be  used  over  the  intrastate  in- 
dustry. Here  also  the  supervision  is  "under  the 
care  of  the  Bureau  of  Animal  Industiy;  but  in 
many  states  the  local  business  is  practically  free 
from  supervision,  and  animals  condemned  by 
bureau  inspectors  may  sometimes,  and  those  which 


GOVERNMENTAL  INSPECTION  189 

have  been  withheld  from  federal  inspection  be- 
cause of  suspicious  indications  generally  do,  gain 
access  to  the  local  trade  in  such  free  states.  The 
following  paragraphs  relate  only  to  the  supervi- 
sion by  the  bureau. 

143.  Antemortem  Examination.  Upon  the  pres- 
entation of  satisfactory  evidence  with  an  applica- 
tion for  the  admission  of  the  products  of  a  slaugh- 
tering establishment  into  the  interstate  and  for- 
eign commerce,  an  inspector  from  the  bureau  is 
assigned  to  take  supervision  of  the  establishment, 
with  needed  assistants.  All  animals  designated 
for  slaughter  must  be  first  inspected  antemortem. 
Those  found  diseased  are  condemned,  so  marked, 
and  tanked  without  the  removal  of  the  tag.  ' '  Sus- 
pects" may  be  retained  for  further  examination, 
or  disposed  of  according  to  circumstances.  But 
suspects  must  be  slaughtered  at  the  establishment 
where  inspected,  unless  released  for  pregnancy, 
or  similar  temporary  disability.  Neither  suspects 
nor  condemned  animals  are  to  be  slaughtered  with 
those  which  have  passed  examination.  So  far  as 
possible  where  hogs  have  been  condemned  as  sus- 
pects, other  hogs  of  the  same  lot  must  be  slaugh- 
tered separately  from  those  passed  antemortem. 
Animals  showing  suspicious  symptoms  of  rabies, 
tetanus,  milk  fever,  or  railroad  sickness,  or  pre- 
sented for  antemortem  examination  in  a  dying 
condition,  must  be  marked  ''condemned,"  and  so 
disposed  of. 

144.  Postmortem  Examination.  All  carcasses 
are  carefully  inspected,  postmortem,  for  evidence 
of  disease;  and  for  this  purpose  all  parts  of  a 
slaughtered  animal  must  be  kept  together,  and 


190      ESSENTIALS  OF  VETERINARY  LAW 

easily  identified,  until  the  condition  is  finally  de- 
termined. Condemned  carcasses,  or  condemned 
parts  must  be  disposed  of  according  to  the  rulings 
of  the  inspector.  The  inspector  must  be  satisfied 
that  all  carcasses  or  parts  accepted  are  safe,  and 
that  parts  condemned  are  so  disposed  of  that  they 
will  do  no  harm. 

145.  Condemnations.  Parts  of  carcasses  held 
for  examination  are  marked  "retained,"  and  all 
diseased  parts  must  be  removed  before  that  tag 
is  removed.  Carcasses  or  parts  may  sometimes  be 
held  for  sterilization,  and  so  marked.  Carcasses 
condemned  are  so  marked,  removed  to  a  locked 
room,  and  there  kept  until  disposed  of. 

Every  part  of  the  body  of  an  animal  suffering 
from  anthrax  must  be  burned,  and  the  killing  bed 
thoroughly  disinfected. 

Tuberculosis.  The  entire  body  must  be  con- 
demned if  at  the  antemortem  examination  it  was 
suffering  with  fever,  cachexia,  anaemia,  or  emacia- 
tion; also  if  the  tuberculous  lesions  are  found 
generalized,  or  in  the  muscles,  intermuscular  tis- 
sue, bones  or  joints;  or  if  there  are  extensive  lesions 
in  one  or  more  of  the  body  cavities ;  or  where  the 
lesions  are  multiple  or  acute.  Parts  must  be  con- 
demned when  they  contain  tuberculous  lesions,  or 
when  adjacent  to  tuberculous  lesions,  or  when  con- 
taminated by  coming  in  contact  with  the  floor  or 
a  knife  soiled  with  tuberculous  lesions.  An  organ 
must  be  condemned  when  the  corresponding  lymph 
glands  show  infection.  But  carcasses  may  be 
passed  when  the  lesions  are  slight,  localized,  cal- 
cified or  encapsulated,  or  when  they  are  limited, 
and  with  no  evidence  of  recent  invasion  of  the 


GOVERmiENTAL  INSPECTION  191 

bacilli  into  the  systemic  circulation.  Carcasses 
revealing  lesions  more  severe  or  more  numerous 
may  be  rendered  into  lard  or  tallow  if  the  distribu- 
tion is  such  that  the  tuberculous  lesions  can  be 
removed. 

Hog  cholera  or  sivine  plague.  Carcasses  of  hogs 
marked  as  suspicious  in  antemortem  examination 
must  be  carefully  examined  post  mortem,  and  if 
found  afflicted  with  acute  hog  cholera  or  with 
swine  plague  they  must  be  condemned.  But  if 
the  carcass  shows  no  indications  of  either  of  these 
diseases  except  in  the  kidneys  or  Ijmiph  glands  it 
may  be  passed  for  food.  If  it  shows  lesions  slight 
in  extent  in  other  organs  it  may  be  passed  for 
sterilization. 

Actinomycosis.  Carcasses  showing  general  ac- 
tinomycosis must  be  condemned.  Those  well  nour- 
ished, and  showing  uncomplicated  localized  acti- 
nomycosis may  be  passed  after  removal  of  diseased 
parts.  Heads  so  affected  must  be  condemned  ex- 
cept perhaps  in  cases  where  the  lesion  is  slight, 
and  strictly  localized. 

General  Diseases.  Carcasses  must  be  con- 
demned for  the  following  diseases  or  conditions : 

Blackleg,  Hemorraghic  septicemia.  Pyemia, 
Septicemia,  Texas  fever.  Malignant  epizootic 
catarrh.  Unhealed  vaccine  lesions,  Parasitic  ictero- 
hematuria  in  sheep.  Generalized  melanosis,  Pseu- 
doleukemia, and  the  like;  Acute  inflammation  of 
the  lungs,  pleura,  pericardium,  peritoneum,  or 
meninges;  Septicemia  or  pyemia,  whether  puer- 
peral, traumatic,  or  without  evident  cause;  Gan- 
grenous or  severe  hemorrhagic  enteritis,  or  gas- 
tritis; Diffuse  metritis  or  mammitis;  Polyarthritis; 


192      ESSENTIALS  OF  VETERINARY  LAW 

Phlebitis  of  the  umbilical  veins;  Traumatic  peri- 
carditis; Any  acute  inflammation,  abscess  or  sup- 
purating sore,  if  associated  with  acute  nephritis, 
fatty  and  degenerated  liver,  swollen  and  soft 
spleen,  marked  pulmonary  hyperemia,  general 
swelling  of  lymph  glands,  or  diffuse  redness  of  the 
skin. 

Carcinoma.  An  organ  affected  with  carcinoma 
or  sarcoma  must  be  condemned,  but  the  carcass 
may  be  passed  unless  the  disease  affects  any  inter- 
nal organ  to  a  marked  extent,  or  affects  the 
muscles,  skeleton  or  body  lymph  glands,  or  the 
body  shows  secondary  changes  in  the  muscles. 

Localised  conditions.  All  slight,  well  limited 
abrasions  on  the  tongue  and  inner  surface  of  the 
lips  (without  lymphatic  involvement),  suppurat- 
ing sores,  abscesses,  bruised  tissue,  or  parts  af- 
fected by  a  tumor,  must  be  removed,  and  in  the 
absence  of  other  indication  the  carcass  may  be 
passed. 

Necrobacilliosis.  Localized  lesions  may  be  re- 
moved and  the  carcass  passed,  unless  there  is  evi- 
dence of  a  generalized  infection,  when  the  carcass 
must  be  condemned. 

Caseous  lymphadenitis.  Where  the  lesions  are 
distinctly  local,  and  superficial,  or  confined  to  a 
few  nodules  in  an  organ  the  carcass  may  be  passed 
after  removal  of  diseased  parts;  but  where  the 
disease  is  more  extensive  the  entire  carcass  must 
be  condemned. 

Icterus.  Carcasses  showing  icterus  must  be 
generally  condemned ;  but  where  there  is  no  paren- 
chymatous degeneration  of  organs,  such  parts  as 
lose  their  coloration  on  chilling  may  be  preserved. 


GOVERNMENTAL  INSPECTION  193 

providing  that  no  part  shall  be  kept  for  food  or 
sterilization  unless  the  final  inspection  has  been 
made  by  natural  light. 

Carcasses  giving  off  the  odor  of  urine  or  a  sex- 
ual odor  must  be  condemned.  If  the  final  decision 
is  made  after  chilling  the  disposal  must  be  made 
by  the  heating  test. 

Mange  or  scab.  Carcasses  showing  advanced 
mange  or  scab,  or  with  emaciation,  or  extension  of 
inflammation  are  condemned.  Slight  lesions  may 
be  removed  and  the  carcass  passed. 

Carcasses  of  hogs,  otherwise  fit  for  food,  may  be 
passed  after  excising  parts  affected  with  urticaria, 
Tinea  tonsurans,  Demodex  folliculorum,  or 
erythema. 

Tapeworm.  Carcasses  of  cattle  infested  with 
Cysticercus  bovis  must  be  condemned  if  the  infes- 
tation is  general,  or  if  the  meat  is  watery  or  dis- 
colored. Carcasses  showing  slight  infestation  may 
be  passed  after  removing  infested  parts.  Car- 
casses showing  moderate  infestation  may  be 
passed  for  sterilization.  Fats  of  animals  passed, 
or  passed  for  sterilization,  may  be  passed  for  food 
provided  that  they  are  heated  to  a  temperature 
of  not  less  than  140°  F.  Inspection  for  Cysticer- 
cus bovis  may  be  omitted  in  case  of  calves  less 
than  six  weeks  old. 

Carcasses  of  hogs  affected  with  tapeworm  cysts 
(Cysticercus  cellulosae)  may  be  passed  for  steril- 
ization unless  the  infestation  be  excessive,  when 
they  must  be  condemned. 

Parasites  Not  Affecting  Man.  Where  animals 
are  affected  by  parasites  which  do  not  affect  man, 
the  entire  body  may  be  nevertheless  condemned  if 


194      ESSENTIALS  OF  VETERINARY  LAW 

the  infection  be  found  general.  If  localized  to  one 
organ  or  part  of  the  body  the  edible  portions  of 
the  remainder  may  be  passed  after  the  removal  of 
infected  portions.  Where  limited  to  a  small 
portion  of  an  edible  part  of  the  body  the  remainder 
of  that  organ  may  be  passed. 

Carcasses  of  sheep  infested  with  the  Cysticer- 
cus  ovis  after  removal  of  condemned  portions  must 
be  held  for  final  inspection,  and  if  the  total  number 
of  cysts  found  embedded  in,  or  in  close  relation 
with,  muscle  exceeds  five  the  entire  carcass  must 
be  condemned. 

Carcasses  of  animals  showing  the  presence  of 
gid  bladder  worms  may  be  passed  after  removal 
of  the  affected  brain  and  spinal  cord. 

Organs  or  parts  of  carcasses  infested  with 
hydatid  cysts  (Echinococcus)  must  be  condemned. 

Livers  infected  with  fluJces  must  be  condemned. 

Pregnancy.  Carcasses  in  advanced  stages  of 
pregnancy,  or  which  have  given  birth  within  ten 
days,  may  be  passed  for  sterilization,  provided 
there  is  no  evidence  of  septic  infection.  In  that 
case  the  entire  body  must  be  condemned. 

Degeneration.  Animals  too  emaciated  for  food, 
or  which  show  slimy  degeneration  of  fat,  or  serous 
infiltration  of  muscles  must  be  condemned. 

Too  young.  All  stillborn  or  unborn  animals, 
and  those  too  immature  to  make  good  meat  must 
be  condemned. 

Hogs  which  have  entered  the  scalding  vat  alive, 
or  which  have  been  suffocated  in  any  way,  must 
be  condemned. 

Chicken  feed.  Meat  and  organs  condemned  on 
account  of  parasitic  infection,  the  flesh  of  imma- 


GOVERNMENTAL  INSPECTION  195 

ture  or  emaciated  animals,  and  those  condemned 
on  account  of  parturition  may  be  utilized  for  the 
manufacture  of  chicken  feed,  after  being  thor- 
oughly sterilized  by  an  approved  process,  in  offi- 
cial establishments  for  that  purpose,  removed  from 
those  used  for  food  products  for  human  beings. 

146.  Sterilization.  Every  portion  of  the  work 
of  the  slaughterhouse  must  be  under  the  super- 
vision of  the  inspectors  of  the  bureau.  This  in- 
cludes such  side  work  as  rendering,  preserving 
and  canning.  In  each  instance  the  Department 
specifies  how  the  process  is  to  be  performed. 

147.  Disobeying  Orders.  As  previously  stated, 
the  superv^ision  of  the  government  in  this  industry 
is  in  the  nature  of  a  contract.  Should  the  owner 
of  the  slaughterhouse  break  this  contract  by  dis- 
obeying orders  it  would  terminate  his  right  to 
ship  his  products,  either  directly  or  indirectly, 
through  the  interstate  or  foreign  commerce.  While 
he  may  not  be  subject  to  a  fine  or  other  punish- 
ment, nor  liable  to  an  action  in  tort,  this  threat- 
ened loss  of  trade  acts  as  a  potent  force  for  the 
maintenance  of  discipline. 

148.  Arbitrariness.  It  must  not  be  presumed 
that  the  inspector  has  arbitrary  authority.  Ac- 
cording to  the  American  system  of  government 
no  officer  of  civil  government  is  permitted  to  exer- 
cise arbitrary  authority  or  power  (§8).  All  ac- 
tions of  the  inspector  must  be  based  upon  enacted 
statutes,  and  with  a  reasonable  interpretation. 
The  statutes  are  made  applicable  through  Depart- 
mental regulations.  The  final  decision  is  made 
through  the  operation  of  executive  decision. 


196      ESSENTIALS  OF  VETERINARY  LAW 

149.  Appeal.  The  courts  have  no  appellate 
power  over  matters  properly  within  the  jurisdic- 
tion of  the  mspectors.^^  If  it  be  a  question  whether 
the  inspector  has  authority  over  certain  matters, 
this  is  a  question  of  law  for  the  courts  to  decide. 
If  objection  be  made  because  the  inspector  has 
been  mistaken  in  his  judgment,  the  courts  have  no 
jurisdiction.  On  the  other  hand,  appeal  is  pos- 
sible within  the  department.  It  must  be  remem- 
bered that  the  government  and  the  manufacturer 
are  working  together,  and  that  the  manufacturer 
reaps  the  benefit. 

150.  Prosecutions.  It  is  seldom  necessary  to 
prosecute  offenders  against  the  orders  of  inspect- 
ors, as  such.  Prosecutions  are  generally  based 
upon  violation  of  the  statutes  regulating  inter- 
state commerce,  and  as  such  are  brought  before 
federal  courts. 

151.  Statutes.  The  foregoing  regulations  are 
made  under  the  authority  of  and  for  the  carrying 
out  of  the  provisions  of  the  following  federal 
statutes. 

Animal  Inspection  and  Quarantine?'^  The  Act 
of  May  29, 1884,  provides  for  the  establishment  of 
the  Bureau  of  Animal  Industiy  in  the  Department 
of  Agriculture;  for  the  investigation  of  animal 
diseases;  for  the  facilitating  of  animal  industry 
through  restriction  of  infectious  diseases,  and  in- 
spection of  cattle  for  shipment  interstate,  or 
foreign. 

The  Act  of  Feb.  3,  1903,2^  increases  the  author- 
ity of  the  Bureau  by  transferring  certain  powers 

27  Public  Health,  141.  29  32  Stat.  791. 

28  23  Stat.  31. 


GOVERNMENTAL  INSPECTION  197 

formerly  conferred  upon  the  Secretary  of  the 
Treasury  to  the  Secretary  of  Agriculture. 

The  Act  of  March  3,  1905,^'^  enables  the  Secre- 
tary of  Agriculture  to  establish  quarantine  dis- 
tricts for  different  diseases,  and  to  regulate  the 
movements  of  animals  therefrom,  and  more  fully  to 
control  the  spread  of  infectious  diseases  of  ani- 
mals. 

The  Acts  of  June  29,  1906,^^  and  of  March  4, 
1913,^^*  are  for  the  prevention  of  cruelty  to  ani- 
mals during  shipment,  and  for  the  regulation  of 
transportation. 

The  Act  of  appropriation,  of  March  4,  1911,^^ 
provides  under  certain  conditions,  for  the  impor- 
tation of  tick  infested  cattle  from  Mexico  into  that 
part  of  Texas  below  the  southern  cattle  quarantine 
line. 

152.  Meat  Inspection.  The  Act  of  August  30, 
1890,3^  provides  for  the  inspection  of  meats  for 
exportation,  and  prohibits  the  importation  of 
adulterated  articles  of  food  or  drink.^^ 

The  Acts  of  June  30, 1906,3^  and  March  4, 1907,3" 

30  33  Stat.  1264.  S.  W.  441),  or  coloring  to  dis- 

31  34  Stat.  260.  tilled   vinegar,   so   that   it   will 
3ia37  Stat.  831.  represent  cider  vinegar  (People 

32  Public,  No.  478.  v.    William    Henning    Co.,    260 

33  26  Stat.  414.  111.  554,  103  N.  E.  530),  or  the 

34  Cove  oysters  are  adulter-  coloring  of  oleomargarine  to 
ated  when  they  contain  an  ex-  represent  butter  (People  v. 
cessive  amount  of  water.  Food  Arensberg,  105  N.  Y.  123 ;  Pub- 
and  Drugs  act,  judgments  2583,  Lie  Health,  465).  Milk,  oys- 
2584.  Misleading  addition  of  ters,  and  other  articles  of  food 
col'^ring  matter  may  be  pro-  are  frequently  condemned  as 
hibited,  such  as  the  addition  of  adulterated  on  account  of  the 
annatto  to  milk  (St.  Louis  v.  presence  of  bacteria. 
Polinsky,     190     Mo.     516;     St.  3s  34  Stat.  674. 

Louis  V.   Jud,   236  Mo.   1,   139  36  34  Stat.  1200. 


198      ESSENTIALS  OF  VETERINARY  LAW 

provide  for  systematic  supervision  of  the  meat 
production  by  the  Department  of  Agriculture; 
provides  for  post  mortem  examination  by  inspect- 
ors of  the  Department,  and  the  exclusion  from  in- 
terstate or  foreign  commerce  of  such  meats  or 
meat  products  as  show  evidences  of  disease,  pre- 
servatives, coloring  matter  or  disease  producing 
substances. 

The  Act  of  October  3,  1913,37  provides  for  the 
importation  of  certain  articles  free  of  duty,  but 
subjects  imported  meats  to  examination. 

The  Food  and  Drugs  Act  of  June  30,  1906,^8 
provides  for  the  exclusion  of  articles  from  inter- 
state or  foreign  commerce  on  account  of  mislabel- 
ing, or  for  adulteration.  The  administration  of 
this  act  is  in  charge  of  the  Bureau  of  Chemistry 
of  the  Department  of  Agriculture. 

153.  Intrastate  Meat  Industries.  Only  a  little 
over  one  half  of  the  animals  slaughtered  in  the 
United  States  are  slaughtered  under  federal  super- 
vision. In  1907  it  was  estimated  that  approxi- 
mately 5,000,000  cattle,  8,000,000  sheep,  and  over 
10,000,000  hogs  and  3,000,000  calves  were  slaugh- 
tered by  butchers  in  this  country  without  federal 
supervision,  and  most  of  them  without  any  efficient 
supervision  at  all.  Added  to  these  should  be 
1,500,000  cattle,  1,000,000  sheep,  and  16,500,000 
hogs  slaughtered  by  farmers.  Approximately  two 
per  cent  of  carcasses  examined  by  federal  officers 
are  condemned,  and  it  may  easily  be  seen  that  the 
percentage  of  animals  slaughtered  for  intrastate 
consumption  which  should  be  condemned  w^ould 
be  much  greater.    The  federal  government  is  with- 

37  38  Stat.  114,  152,  159.  38  34  Stat.    768. 


GOVERmiENTAL  INSPECTION  199 

out  authority  in  the  matter  of  animals  slaughtered 
for  consumption  within  the  state  where  slaugh- 
tered. Many  of  these  local  establishments  are 
unsanitary  in  construction,  and  arrangement,  and 
facilities  for  satisfactory  examinations  are  almost 
totally  lacking.  The  result  is  that  the  intrastate 
meat  industries  are  conducted  in  a  most  unsatis- 
factory manner,  and  their  products  are  lacking  in 
governmental  endorsement.  Because  they  are  con- 
ducted in  a  cheap  manner,  lacking  in  sanitary 
precautions,  and  also  because  there  is  less  loss 
through  rejection  of  unfit  carcasses,  these  uncon- 
trolled establishments  can  undersell  the  reliable 
products.  Because  they  sell  cheap  meats  local 
interests  frequently  oppose  regulation  of  the  trade. 

154.  Municipal  Control.  Ordinances  regulating 
the  location  and  operation  of  slaughterhouses,  and 
regulating  the  sale  of  meat  products,  are  fre- 
quently enacted  by  municipalities,  under  the  gen- 
eral provisions  of  charters  and  state  statutes.  Such 
ordinances  are  only  partially  effective,  and  they 
may  be  void  because  of  unjust  discriminations 
and  restrictions  of  trade.^"  They  may  be  set  aside 
as  unnecessarily  onerous  on  account  of  the  fees 
charged,  and  because  not  strictly  health  regula- 
tions.^*^ 

Such  municipal  ordinances  are  only  justifiable 
in  the  absence  of  state  regulation  of  the  industry. 
They  are  generally  inefficient,  and  the  require- 
ments of  adjoining  municipalities  may  be  conflict- 
ing. 

39  Armour   &  Co.   v.   City  of  <"  Brimmer    v.    Eebmau,    133 

Au^ista,  134  Ga.  178,  67  S.  E.      U.  S.  78. 
417. 


200      ESSENTIALS  OF  VETERINARY  LAW 

155.  State  regulation.  Efficient  regulations 
should  be  made  in  every  state  by  statutory  enact- 
ment, providing  for  a  strict  super\'ision  of  all  in- 
trastate meat  industries,  on  the  same  general  plan 
as  that  maintained  by  the  federal  government. 
But  state  laws  requiring  the  inspection  of  animals 
within  the  state  before  slaughter  will  be  considered 
as  an  unconstitutional  interference  w^itli  interstate 
commerce  in  the  matter  of  meats  shipped  in  under 
supervision  of  the  federal  government.^^  Such 
laws  may  be  enforced  only  with  regard  to  meat 
slaughtered  within  the  state. 

156.  Common  Law  Regulation.  By  the  common 
law  one  who  sells  articles  of  food  does  so  on  the 
implied  warranty  that  they  are  wholesome;  and 
if  they  be  not  so  an  action  lies  for  such  damages 
as  may  be  shown.^^  Under  this  common  law  prin- 
ciple a  dealer  may  be  assessed  damages  for  the 
sale  of  unwholesome  food,  for  the  offering  of  it 
for  sale  is  an  implied  warranty  of  its  goodness.^^ 
But  such  warranty  does  not  operate  where  the  pur- 
chaser selects  the  article,  and  no  artifice  has  been 
used  to  hide  defects.^^  Where  the  injurious  arti- 
cles are  not  subject  to  previous  inspection,  as  in 
canned  goods,  the  seller,  or  the  manufacturer  may 
be  held  for  the  damage  suffered.** 

41  Minnesota  v.  Barber,  136  **  Farrell  v.  Manhattan  Mar- 
U.  S.  313;  Brimmer  v.  Eebman,  ket  Co.,  198  Mass.  271,  84  N, 
138  U.  S.  78.                                      E.  481,  15  L.  E.  A.  (N.  S.)  884. 

42  Blackstone,  III,  165.  45  jMazetti  v.  Armour  &  Co., 
43Winsor     v.     Lombard,     18       75    Wash.    622,    135    Pac.    633; 

Pick.  57;  French  v.  Vining,  102       Bigelow  v.  Maine  Central  R.  E. 
Mass.  132,  3  Am.  E.  440.  Co.,  110  Me.  105,  85  Atl.  396. 


GOVERNMENTAL  INSPECTION  201 

BIOLOGIC    SUPERVISION. 

157.  Biologic  Products.  In  modern  therapeusis 
and  prophylaxis,  both  for  man  and  beast,  various 
biologic  products  have  become  of  very  gTeat  im- 
portance. The  peculiar  nature  of  these  substances 
readily  offers  itself  as  a  means  for  working  great 
harm,  as  well  as  great  good.  Through  accidental 
infections  they  have  already  caused  many  deaths 
of  human  beings,  and  have  caused  the  nation  tre- 
mendous financial  losses  by  the  introduction  and 
spread  of  animal  diseases.  To  safeguard  the  pub- 
lic as  much  as  possible  the  federal  government 
has  seen  fit  to  exact  licenses  from  all  those  engaged 
in  the  manufacture  of  such  articles  designed  for 
interstate  traffic,  and  under  the  license  system 
to  supervise  the  processes  of  manufacture.  This 
is  in  charge  of  the  Public  Health  Service  of  the 
Treasury  Department,  but  the  services  of  veteri- 
narians is  required  in  the  examination  of  animals 
used  for  this  pui^pose.  The  manufacture  is  con- 
ducted under  the  strictest  surgical  technique,  and 
every  operation  is  safeguarded  as  much  as  pos- 
sible. 

158.  Governmental  Responsibility.  The  gov- 
ernment does  not  guarantee  the  purity  of  the  prod- 
uct. Neither  did  the  label ' '  Guaranteed  under  the 
U.  S.  Pure  Food  and  Drugs  Act"  mean  that  the 
government  guaranteed  the  contents  of  the  pack- 
age. That  label  simply  meant  that  under  the  pro- 
visions of  that  act  the  maker  guaranteed  the  gen- 
uineness of  his  product  as  marked.  In  point  of  fact 
many  manufacturers  and  dealers  have  been  prose- 
cuted by  the  government  because  they  attempted 


202      ESSENTIALS  OF  VETERINARY  LAW 

to  use  this  method  for  misleading  the  public. 
Though  the  national  government  thus  tries  to  pro- 
tect the  citizens  in  their  lives  and  property,  it  does 
not  in  the  least  relieve  the  manufacturers  and 
dealers  from  their  responsibility  and  liability.  It 
is  the  part  of  the  government  supenasors  to  check 
any  suspicious  tendencies,  but  the  real  liability 
rests  with  the  manufacturing  company.  Some 
companies  have  learned  this  lesson,  but  some 
others  still  seem  at  times  willing  to  take  risks 
which  should  not  be  run.  There  should  be  no 
diphtheria  antitoxin  sent  out  where  there  is  a 
possibility  of  there  being  tetanus  infection  in  the 
serum;  nor  hog  cholera  serum  until  tests  have 
shown  the  absence  of  the  foot  and  mouth  disease 
virus.  One  serious  outbreak  of  tetanus  occurred 
through  virus  manufactured  under  a  municipal 
health  department,  "to  save  money,"  and  not 
under  federal  supervision.  This  is  not  a  business 
for  non-experts  to  engage  in.  So  long  as  the  high- 
est degree  of  care  and  diligence  is  used  the  manu- 
facturer will  be  protected  by  the  courts;  but  if, 
to  reduce  expense,  or  because  of  commercial  pres- 
sure, it  be  shown  that  he  ' '  runs  the  risk ' '  and  harm 
results,  he  should  be  prosecuted  criminally,  and 
he  should  also  be  forced  to  pay  full  damages  for 
the  harm  done.  A  firm  manufacturing  vaccine 
virus  rented  calves  for  that  purpose.  After  col- 
lecting the  vaccine  serum  the  calves  were  returned 
to  the  renters,  sold  and  shipped  to  distant  parts, 
infected  with  the  foot  and  mouth  disease  virus 
through  vaccination.  Under  the  present  orders 
of  the  Public  Health  Service  such  an  accident  is 
less  likely  to  recur,  because  in  addition  to  testing 


GOVERNMENTAL  INSPECTION  203 

each  lot  of  virus  the  calves  are  now  slaughtered 
under  governmental  supervision,  and  subjected 
to  careful  scinitiny. 

If  a  governmental  inspector  or  supervisor,  either 
through  unworthy  motives,  and  incentives,  or  be- 
cause of  carelessness,  shall  be  shown  to  be  negli- 
gent in  the  matter,  and  permit  practices  in  connec- 
tion with  the  business  whereby  accidental  infec- 
tion to  the  biologic  products  enter,  and  in  conse- 
quence harm  results,  such  governmental  officer  or 
employee  may  be  personally  liable  for  the  harm 
resulting;  but  the  holding  of  such  officer  by  no 
means  reduces  the  responsibility  of  the  manufac- 
turer. He  may  still  be  i^rosecuted  criminally  and 
civilly.  It  may  be  that  the  damages  may  be  as- 
sessed against  the  manufacturer  and  the  negli- 
gent official  conjointly. 

159.  Evidence  of  Infection.  Where  infection 
has  occuiTed,  the  duty  of  ferreting  out  the  evi- 
dence may,  and  probably  would,  devolve  largely 
upon  veterinarians.  First,  it  should  be  detected  in 
those  used  for  the  manufacture,  either  before  or 
after  slaughter.  Secondly,  should  it  not  be  de- 
tected at  the  start  it  must  frequently  be  traced 
among  the  subjects  upon  which  the  product  is 
used.  This,  in  a  large  proportion  of  the  cases,  will 
be  among  the  lower  animals  treated  by  veterinar- 
ians. In  these  cases,  the  work  of  the  official  veteri- 
narians would  be  greatly  facilitated  by  certain  pos- 
sible records  made  by  private  practitioners. 

Where,  as  in  protection  against  hog  cholera,  a 
large  amount  of  serum  is  used,  the  veterinarian 
should  make  such  a  record  that  he  can  trace  the 
serum  used  on  any  particular  lot.    This  is  required 


204      ESSENTIALS  OF  VETERINARY  LAW 

in  the  case  of  serum  supplied  by  many  states.  It 
is  well  to  use  serum  from  two  or  more  lots  at  the 
same  time,  and  when  this  is  practiced  they  should 
not  be  used  indiscriminately.  When  so  used  it 
would  be  practically  impossible  to  trace  the  in- 
fection should  harm  result.  On  the  other  hand, 
a '  *  control ' '  test  may  offer  efficient  aid.  For  exam- 
ple: Suppose  a  veterinarian  has  lots  of  X  and  Y 
serum,  enough  to  treat  herds  of  A.  and  B.  If  he 
used  the  lots  of  serum  indiscriminately,  and 
disease  broke  out  soon  after,  there  would  be  little 
to  show  that  the  disease  was  due  to  the  use  of 
either  lot.  If  X  were  used  only  on  the  A  herd, 
and  Y  on  the  B  hogs,  the  occurrence  of  foot  and 
mouth  disease  in  the  A  herd  would  point  to  the  X 
serum  as  a  possible  source.  But  if  X  were  used 
on  the  A  herd  except  two  or  three  animals,  on 
which  Y  was  used;  and  Y  were  used  on  the  B  herd, 
except  a  few  on  which  X  were  used;  then  if  the 
disease  occurred  only  among  the  A  herd,  irrespect- 
ive of  the  serum  used,  it  would  indicate  that  the 
disease  was  not  due  to  the  serum ;  but  if  it  showed 
first  in  the  X  animals  of  each  herd  it  would  be 
strong*  evidence  of  infection  in  the  X  serum.  In 
such  use  of  two  lots  the  exceptional  animals  in 
each  herd  must  be  clearly  and  surely  indicated  in 
the  record. 

If  in  addition  the  veterinarian  made  a  practice 
of  reserving  one  package  from  each  lot  used,  for 
a  period  of  from  fifteen  to  thirty  days,  there  would 
be  a  possibility  of  surely  demonstrating  the  qual- 
ity of  the  article.  There  is  another,  and  a  selfish 
reason  for  the  veterinarian  adopting  this  practice. 
If  after  the  use  of  serum,  septicaemia  breaks  out 


GOVERNIklENTAL  INSPECTION  205 

among  the  animals,  he  may  be  morally  certain 
that  it  was  due  to  the  serum  used;  but  the  com- 
pany will  be  just  as  sure  that  it  was  due  to  the 
operator's  lack  of  care.  A  reserved  package,  kept 
properly  cold,  will  be  the  means  of  demonstrating 
the  truth.  Without  that  evidence  his  own  reputa- 
tion as  a  veterinarian  may  be  lost,  and  he  may  be 
held  in  civil  damages  for  the  harm  done  through 
his  alleged  malpractice.  This  was  the  defense  of 
one  manufacturing  concern  in  a  suit  for  damages, 
and  the  court  found  the  company  not  liable. 


CHAPTER  VIII. 

EXECUTIVE  ORGANIZATION. 


165.  American    Executive 

System  Unsatisfactory. 

166.  Executive  Boards. 

167.  A  Trained  Executive. 

168.  Paid   Executives. 

169.  Permanency  of  Office. 

170.  Veterinary    Science    and 

the     Medical     Profes- 
sion. 

171.  License  Examiners. 


§  172.  License  Appeals. 

§  173.  Health     Preservation     a 

Function  of  the  State. 
§  174.  Organization  of  a  Health 

Department — State. 
§  175.  Local  Organization. 
§  176.  Eecords. 
§  177.  Reports. 
§  178.  Guidance  of  Legislation. 


165.  American  Executive  System  Unsatisfac- 
tory. Altlioiigli  Americans  have  the  reputation 
of  being  higlily  efficient  in  business,  tliey  fail  to 
show  evidences  of  such  a  character  in  the  execu- 
tive departments  of  state  and  municipal  govern- 
ments. There  are  several  reasons  for  this.  One 
is  that  the  people  generally  have  not  awakened 
to  the  fact  tliat  governmental  business,  like  com- 
mercial enterprises,  requires  special  training  and 
experience  for  each  branch  of  the  work.  Ameri- 
cans show  a  certain  egotistical  conceit  in  thinking 
that  any  one  can  serve  in  any  kind  of  an  office, 
and  that  each  citizen  has  a  sort  of  right  to  a  chance 
at  the  public  treasury.  The  ' '  spoils ' '  system,  with 
the  frequent  changes  of  the  occupants  of  office,  is 
emphatically  hostile  to  efficiency.  What  business 
house  could  survive  if  every  two  or  three  years  it 

206 


EXECUTIVE  ORGANIZATION  207 

discharged  a  majority  of  its  employees,  and  put 
in  raw  talent?  In  ordinary  manufacturing  or 
commercial  business  those  at  the  head  are  selected 
from  those  who  have  spent  years  in  working  up 
from  the  bottom  of  the  ladder.  The  head  positions 
are  rightly  regarded  as  the  important  ones.  In 
American  govermuents  it  is  the  custom  to  appoint 
men  to  the  responsible  positions  who  have  never 
had  any  experience  in  the  government.  For  a 
time  even  the  subordinates  who  are  retained  are 
demoralized,  and  work  is  paralyzed.  Before  those 
in  the  higher  positions  have  really  learned  their 
work  they  give  place  to  others,  and  the  process 
of  adjustment  begins  again.  "With  such  a  system 
eflficiency  is  a  practical  impossibility.^ 

166.  Executive  Boards.  Another  serious  draw- 
back to  efficiency  is  found  in  the  existence  of  ex- 
ecutive boards.  Absolutely  nothing  can  be  said 
in  defense  of  the  idea.  Executives  have  no  legis- 
lative authority.  It  is  the  business  of  executives 
to  act,  and  to  administer  the  laws  as  found.  A 
board  is  very  different  from  an  executive  council, 
in  which  the  chief  calls  his  subordinates  together 
for  an  interchange  of  ideas,  and  to  hamionize  the 
work  in  different  portions  of  the  department.  Such 
councils  are  often  necessary  for  purpose  of  efficient 
orientation  as  to  conditions.  A  board  is  composed 
of  members  equal  in  authority  and  responsibility. 
It  is  true  that  for  parliamentary  practice  they  may 
elect  a  chairman  or  president,  and  a  secretaiy  to 
whom  may  be  intrusted  special  duties  and  respon- 
sibilities; and  they  may  have  an  executive,  who 

1  See  Public  Health,  Chap- 
tor  IV. 


208      ESSENTIALS  OF  VETERINARY  LAW 

may  be  specially  fitted  for  his  position ;  but  essen- 
tially the  members  are  endowed  with,  not  only 
equal  power,  but  also  equal  irresponsibility  and 
equal  lack  of  authority.  In  consequence,  the  work 
of  boards  shows  a  lack  of  vigor,  exjoedition,  and 
certainty  of  action,  which  are  necessary  for  effi- 
ciency in  executive  performance. 

Added  to  these  inherent  objections  to  the  idea, 
a  board  is  generally  composed  of  citizens  who 
devote  only  a  portion  of  their  time  to  their  official 
duties,  often  without  pay,  and  they  are  generally 
also  without  special  training  or  education  which 
would  fit  them  for  their  special  service.  What  is 
worth  having  is  always  worth  paying  for.  It  is 
puerile  to  expect  a  man  to  neglect  his  private  af- 
fairs to  attend  to  business  which  others  can  do 
as  well  as  he,  and  for  which  others  have  quite  as 
much  legal  responsibility.  In  consequence,  though 
the  members  may  be  punctual  in  attending  to  the 
meetings  of  the  boards,  they  come  unprepared  for 
the  work  before  them,  and  waste  much  time  in 
talking  over  matters  upon  which  none  of  the 
board  is  posted. 

Every  one  knows  that  for  a  well  posted  man  to 
be  obliged  to  consult  one  less  informed  before 
action  must  impede  efficient  administration;  yet 
that  is  the  essence  of  the  American  and  English 
''board"  idea.  Every  member  of  a  board  is  an 
obstructionist  in  executive  efficiency  in  proportion 
as  he  is  less  competent  than  the  one  most  compe- 
tent. 

An  attempt  is  made,  especially  in  English 
boards,  to  obviate  this  weakness  by  employing  or 
appointing  a  competent  executive,  but  under  this 


EXECUTIVE  ORGANIZATION  209 

plan  the  competent  man  is  made  subject  to  the 
untrained  board.  An  illustration  of  this  employ- 
ment of  trained  specialists  is  the  veterinary  in- 
spector, frequently  a  part-time  official, '  *  who  must 
be  appointed  by  the  county  councils,  the  City  Cor- 
poration, and  the  councils  of  boroughs  with  a  pop- 
ulation exceeding  10,000  at  the  census  of  1881,  and 
the  Hove  urban  authority,  who  are  the  authorities 
under  the  Diseases  of  Animals  Act,  1894. ' '  ^ 
Although  the  English  system  has  been  greatly 
simplified  within  the  past  three  decades,  the  ma- 
chinery is  still  complicated  and  cumbrous,  taking 
time  for  its  operation.  There  was  a  time  when 
there  was  ' '  one  authority  for  eveiy  privy  and  an- 
other for  eveiy  pigstye;  but  with  regard  to  the 
privy,  one  authority  is  expected  to  prevent  it  being 
a  nuisance  and  the  other  to  require  it  to  be  put  to 
rights  if  it  be  a  nuisance."^  Still,  with  the 
multiplication  of  boards,  more  or  less  conflicting 
in  authority,  and  with  an  attempt  to  delegate  the 
authority  to  conunittees  which  can  be  called  to- 
gether more  easily  than  the  boards,  even  the  ap- 
pointment or  employment  of  trained  specialists 
fails  to  create  efficiency. 

The  executive  has  no  authority  in  himself. 
Where  the  use  of  judgment  is  required  a  board 
cannot  lawfully  delegate  its  power  to  such  an  exec- 
utive, even  if  he  be  one  of  the  members  of  the 
board.^  If  a  question  comes  up  for  the  executive 
when  the  board  is  not  in  session  he  should  legally 

2  Bannington,  English  Public  *  Public   Health,   272 ;    also 

Health  Administration,  p.  101.  see  §  9. 

^  Quoted  by  Bannington,  Op. 
cit.  p.  9. 


210      ESSENTIALS  OF  VETERINARY  LAW 

postpone  all  action  until  tlie  board  meets.  He 
cannot  even  take  the  consensus  of  the  members. 
They  must  meet  to  act.^  If  he  takes  the  respon- 
sibility of  action  be  may  do  so  only  at  his  peril, 
and  if  harm  or  injury  results  to  any  one  through 
such  illegal  though  possibly  advisable  action,  he 
may  be  held  personally  liable,  if  after  the  board 
meets  they  fail  to  support  him  in  his  act,  and  take 
the  responsibility  upon  themselves.*' 

Modem  business  methods  demand  that  respon- 
sibility be  definite  with  each  person  engaged  in 
its  operation  for  some  particular  portion  of  the 
work,  and  that  there  be  no  portion  of  the  work 
which  is  not  clearly  the  duty  of  some  one  person 
to  perforai.  It  would  be  just  as  advisable  and 
practical  to  entrust  the  operation  of  a  pumping 
station  to  a  board  of  amateur  engineers,  or  so  to 
construct  an  automobile  that  each  occupant  would 
have  an  equal  control  over  its  movements,  as  it 
is  to  expect  a  board  to  be  efficient  in  governmental 
administration. 

167.  A  Trained  Executive.  Another  serious 
fault  in  American  executive  administration  is  the 
failure  to  recognize  the  necessity  for  special  edu- 
cation and  training  previous  to  appointment  to 
office.  This  is  particularly  true  of  positions  re- 
quiring special  technical  knowledge.  To  some 
degree  this  is  recognized  in  certain  lines  of  work. 
For  example,  it  is  customary  to  make  a  knowledge 
of  the  law  requisite  for  appointment  or  election 
to  the  judicial  bench.    Some  knowledge  of  the  law 

5  Public  Health,  295. 
c  Public  Health,  360,   365, 
366. 


EXECUTIVE  ORGANIZATION  211 

is  far  more  general  than  the  knowledge  of  such 
a  science  as  that  of  the  veterinarian,  or  the  sani- 
tarian. The  mere  fact  that  a  physician  or  a  vet- 
erinarian has  to  do  with  diseases  is  no  indication 
that  he  has  a  personal  fitness,  or  professional 
knowledge  which  would  fit  him  for  the  supervision 
of  public  health  protection,  either  for  man  or 
beast.  It  is  a  special  line  of  work  for  which  there 
is  little  scope  today  except  in  governmental  ad- 
ministration. 

Although  public  health  is  more  generally  taught 
in  veterinary  schools  than  in  the  schools  for  the 
education  of  ordinary  physicians,  the  private 
practice  is  diametrically  opposed  to  that  of  health 
protection.  The  private  practitioner  does  not  get 
his  chance  for  employment  until  health  protection 
has  failed.  In  consequence  there  is  a  distinct  dif- 
ference in  the  line  of  thought  and  action  of  the 
health  defender  from  that  of  the  treater  of  dis- 
ease. Though  the  persons  may  be  on  the  most 
friendly  and  sympathetic  terms,  the  two  sciences 
are  opposing  in  essence.  Though  in  subordinate 
positions  it  may  sometimes  be  advisable  to  em- 
ploy the  part  time  services  of  those  otherwise 
engaged,  the  head  of  the  department  should  be  a 
full  time  governmental  executive. 

168.  Paid  Executives.  If  efficiency  demands 
the  full  time  of  a  specially  trained  and  educated 
man,  it  follows  that  he  should  be  paid  enough  to 
make  it  an  inducement  for  him  to  ser\^e  the  public 
generally,  rather  than  to  depend  upon  private 
patronage.  The  government  is  continually  losing 
the  services  of  men  who  have  proved  their  effi- 
ciency because  private  interests  frankly  acknowl- 


212      ESSENTIALS  OF  VETERINARY  LAW 

edge  the  fact  that  a  good  man  is  better  worth  his 
salary  though  large,  than  the  poorly  equipped 
man  is  his  pittance.  The  penny-wise  legislators 
are  inclined  to  believe  that  so  long  as  any  one  can 
be  induced  to  take  an  office  for  small  pay,  the  pay 
should  not  be  raised.  The  consequence  is  that  the 
office  must  be  filled  with  incompetent  men  or  those 
who  seek  to  make  up  the  deficiency  through  doubt- 
ful means.  There  are  many  ways  of  using  a  free 
office  for  the  personal  advantage  of  the  holder, 
and  low  salaries  in  governmental  work  always 
put  a  premium  upon  dishonesty. 

169.  Permanency  of  Office.  Since  governmental 
work  demands  qualifications  for  which  there  are 
small  demands  in  private  life,  it  follows  that  a 
competent  departmental  executive  should  hold 
his  office  so  long  as  he  proves  efficient.  He  should 
not  be  subject  to  removal  with  every  change  in 
administration — that  tends  to  attract  his  atten- 
tion from  his  executive  business  to  politics.  It 
often  perverts  his  administration  in  order  to 
secure  or  hold  political  support.  A  Canadian 
judge  is  not  even  permitted  to  vote  at  an  elec- 
tion, in  order  thus  to  keep  him  clear  of  political 
entanglements.  There  should  be  no  admixture  of 
health  administration  with  political  party  con- 
tests. It  is  true  that  sometimes  a  party  may  very 
properly  make  public  health  one  of  its  party 
planks,  but  the  man  who  holds  an  executive  posi- 
tion in  the  goverament  should  be  pennitted  to 
devote  his  full  attention  to  health  protection,  if 
that  be  his  particular  field  of  operation. 

170.  Veterinary  Science  and  the  Medical  Pro- 
fession.   The  members  of  the  general  medical  and 


EXECUTIVE  ORGANIZATION  213 

the  veterinarian  professions  fail  to  realize  com- 
monly that  they  are  all  really  engaged  in  the  same 
work.  Formerly  veterinarians  came  from  the 
ranks  of  the  blacksmiths  or  farriers,  just  as  sur- 
geons were  formerly  the  barbers.  Both  were  for- 
merly regarded  as  on  a  lower  plane  than  physi- 
cians, but  time  has  shown  the  intimate  relation- 
ship which  exists  between  the  three.  There  is 
less  real  difference  between  the  work  of  the  human 
practitioner  and  the  veterinarian  than  there  is  in 
the  scope  of  the  veterinarian's  work.  The  veteri- 
narian is  called  upon  to  treat  canary  birds  and 
elephants,  and  his  treatment  must  vary  in  con- 
sequence. Bacteriology  and  surgery  are  essen- 
tially one  for  human  beings  and  for  the  lower  ani- 
mals, and  drug  dosage  must  vary  with  the  species 
of  the  patient. 

Besides  this,  in  health  protection  human  beings 
are  as  much  interested  in  disease  prevention 
among  certain  animals  as  they  are  among  human 
beings,  even  when  the  object  is  solely  for  the  de- 
fense of  mankind.  It  is  for  this  purpose  that  vet- 
erinarians are  employed  for  the  inspection  of  the 
meat  industry.  Doctors  who  have  only  studied 
human  beings  are  not  competent  to  pass  upon  the 
health  of  cattle,  sheep  and  hogs,  nor  to  detect  any 
but  gross  lesions  in  meat  carcasses.  On  the  other 
hand,  the  study  of  human  epidemiology  has  opened 
a  new  field  for  the  veterinarian  to  explore  among 
animal  diseases.  There  is  an  essential  oneness 
between  the  two  fields  of  endeavor  which  must  be 
recognized  in  practice.  In  this  connection  it  may 
be  interesting  to  note  that  in  law  digests  the  two 
professions  are  today  considered  and  treated  as 


214      ESSENTIALS  OF  VETERINARY  LAW 

one,  and  to  look  up  a  point  in  veterinary  law  one 
must  turn  to  the  heading  ''Physicians  and  Sur- 
geons. ' ' 

Because  of  the  essential  oneness  of  these  two 
fields  of  work,  and  to  reduce  duplication  in  work 
and  equipment,  efficiency  demands  that  the  two 
must  be  under  one  administration.  This  does  not 
mean  that  the  human  physicians  must  be  subject 
to  veterinarians;  nor  that  veterinarians  must  be 
under  the  supervision  of  those  who  deal  with  hu- 
man beings.  The  head  of  the  department  should 
be  one  who  is  most  familiar  and  efficient  as  an 
administrator  in  the  entire  field  of  health  pro- 
tection. He  should  not  be  a  physician,  nor  a  vet- 
erinarian, nor  an  engineer,  as  such,  but  he  should 
be  selected  for  his  knowledge  and  ability  in  all 
the  fields,  in  general.  The  particular  questions 
arising  in  some  special  field  he  should  be  able  to 
settle  if  given  the  time;  but  in  practice  he  will 
depend  upon  those  specially  chosen  for  their 
knowledge  of  the  particular  field.  For  example, 
whether  he  be  an  engineer,  a  physician,  or  a  vet- 
erinarian, and  a  question  arises  pertaining  to 
veterinary  practice  he  will  leave  it  to  the  veterina- 
rian in  charge  of  that  department  except  in  so  far 
as  other  departments  may  be  involved.  If  it 
refers  to  both  human  and  animal  diseases  he  will 
leave  it  for  the  separate  decisions  of  the  two,  and 
with  those  heads  he  will  act  as  a  harmonizer. 

171.  License  Examiners.  Though  it  is  true  that 
efficiency  cannot  generally  be  obtained  by  board 
organization,  there  come  special  questions  which 
must  depend  for  just  decision  upon  the  consensus 
of  the  minds  of  several.    Much  depends  in  the  pro- 


EXECUTIVE  ORaANIZATION  215 

tection  of  tlie  health  and  lives  of  animals  and  men 
upon  the  competency  of  the  practitioners  of  both 
classes.  The  detennination  of  this  fitness  is  there- 
fore a  normal  portion  of  the  work  of  a  health  de- 
partment. This  is  generally  determined  either  by 
the  registering  of  a  diploma  from  a  recognized 
school,  or  by  an  examination  before  a  board.  When 
it  is  simply  a  registration  of  a  diploma  it  is  a 
purely  executive  act,  and  needs  no  special  organi- 
zation. An  examination  is  a  quasi-judicial  act, 
though  performed  in  an  executive  department. 
Competent  examiners  are  not  generally  such  men 
as  are  fitted  for  ordinary  executive  business.  It 
happens,  therefore,  that  examiners  are  generally 
chosen  from  the  ranks  of  the  profession  into  which 
the  applicant  seeks  admission.  They  must  each 
be  a  man  of  judicial  temperament,  and  specially 
qualified  according  to  the  most  advanced  knowl- 
edge of  some  particular  portion  of  professional 
knowledge.  A  board  of  surgeons  is  not  competent 
to  examine  a  man's  knowledge  of  medicine;  nor 
one  of  eye  specialists  to  decide  as  to  a  man's  com- 
petency in  obstetrics.  The  board  should  there- 
fore be  made  up  so  that  each  field  of  the  practice 
will  be  covered  by  some  member  who  is  well  edu- 
cated in  that  field.     ( ^  §  30-38. ) 

Examiners  should  not  be  connected,  either  di- 
rectly or  indirectly,  with  an  educational  institu- 
tion granting  diplomas  in  that  profession.  Such 
men,  even  when  honest  in  intention,  are  inclined 
to  unduly  favor  certain  schools. 

Examiners  should  be  paid  for  their  work  for 
the  public  good.  This  does  not  mean  that  they 
should  be  paid  large  fees,  but  that  they  should 


216      ESSENTIALS  OF  VETERINARY  LAW 

be  so  paid  that  they  will  not  lose  too  much  in  at- 
tending to  the  public  business.  Neither  should 
they  be  compensated  in  fees,  for  that  will  block 
efficiency  ofttimes  by  making  it  an  inducement, 
when  reciprocity  of  license  is  possible,  for  them 
to  be  easy  in  their  tests,  in  order  to  attract  candi- 
dates for  examination  who  will  later  take  recip- 
rocal licenses  in  another  state.  Tests  for  license 
must  be  based  upon  the  law  of  supply  and  de- 
mand: that  is,  the  public  should  be  entitled  to  a 
full  supply  of  the  most  comjDetent.  In  a  section 
where  there  are  very  few  really  competent  veteri- 
narians the  standard  should  not  be  so  high  as 
where  the  profession  is  already  crowded. 

Licenses  should  not  be  issued  by  the  board  of 
examiners,  but  in  the  name  of  the  head  of  the 
department,  to  whom  the  board  should  report.  In 
this  way,  the  only  dealings  of  the  members  of 
the  board  of  examiners  with  the  applicant  would 
be  in  the  examination  itself. 

172.  License  Appeals.  It  sometimes  happens 
that  a  candidate  feels  that  he  has  been  unjustly 
treated  in  an  examination.  Instances  have  been 
known  where  the  evidence  showed  at  least  a  very 
strong  presumption  that  the  claim  was  well  found- 
ed, and  that  the  results  were  influenced  by  corrupt 
motives  on  the  part  of  one  or  more  of  the  exam- 
iners. Such  applicants  should  have  an  opportu- 
nity of  appeal  to  some  one  competent  to  decide 
the  matter.  The  courts  have  no  jurisdiction,  un- 
less a  question  of  law  be  involved;  and  a  governor 
having  no  scientific  knowledge  of  the  subject  is 
therefore  unfitted  to  make  a  decision.  Witli  such 
an  arrangement  as  here  proposed  there  is  provi- 


EXECUTIVE  ORGANIZATION  217 

sion  for  appeal,  either  to  the  head  of  the  depart- 
ment, or  to  a  special  board  composed  of  the  heads 
of  the  various  examining  boards  of  the  depart- 
ment, presided  over  by  the  chief  executive  of  the 
department. 

173.  Health  Preservation  a  Function  of  the 
State.  The  matter  of  health  protection  is  strictly 
a  governmental  problem,  and  as  such  it  is  the 
function  of  the  state.  Even  when  it  is  in  the  care 
of  city  officials  it  is  not  municipal  business,  but 
it  is  work  entrusted  to  the  city  to  do  for  the  state. 
So  far  as  possible,  therefore,  it  is  necessary  for 
efficiency  that  the  local  administration  be  super- 
vised by  the  state  office. 

Not  only  is  the  preservation  of  the  public  health 
an  affair  and  function  of  the  state,  but  the  citizens 
in  distant  parts  are  often  quite  as  much  interested 
in  proper  local  sanitation  as  the  citizens  of  the 
immediate  community.  If  there  be  scarlet  fever 
in  a  dairy  district  the  neighbors  know  it,  and 
may  guard  against  the  infection;  but  the  residents 
of  the  city  where  the  milk  is  used  are  unable  to 
protect  themselves  fully.  It  is  therefore  more 
important  to  the  city  residents,  in  this  case,  than 
for  the  farmers  in  the  dairy  community,  that  there 
should  be  an  efficient  governmental  supervision  of 
the  matters  possibly  endangering  the  public 
health.  On  the  other  hand,  the  city  which  dis- 
charges its  sewage  improperly  into  a  stream  may 
thus  endanger  the  farming  community  further 
down  the  stream,  and  the  farmers  are  therefore 
especially  interested  in  a  proper  sanitary  admin- 
istration of  the  city. 

There  are  many  things  which  might  be  said  in 


218      ESSENTIALS  OF  VETERINARY  LAW 

favor  of  our  adoption  of  some  modification  of  a 
plan  used  in  England  to  assist  in  securing  good 
ser^dce.  There  is  in  London  a  body  called  the 
*' Local  Government  Board."  It  was  created  by 
Parliament  to  look  after  matters  specially  pertain- 
ing to  localities.  Health  administration  is  under 
its  control.  Realizing  that  the  smaller  communi- 
ties cannot  afford  to  pay  for  the  services  of  a  com- 
petent sanitarian,  the  Local  Government  Board 
agrees  to  pay  one-half  of  the  salaries  of  certain 
officers  of  health  and  inspectors.  It  leaves  the  ap- 
pointment of  these  officials  to  the  local  authori- 
ties, but  it  stipulates  that  no  officer  partly  sup- 
ported by  the  Local  Government  Board  shall  be 
appointed  or  removed  without  the  consent  of  the 
Local  Government  Board,  and  it  further  requires 
that  appointees  must  present  evidence  that  they 
are  qualified  for  the  position,  and  that  they  will 
devote  full  time  to  the  service. 

The  English  experience  is  emphatically  to  the 
effect  that  practitioners  engaged  in  private  work 
are  inefficient  public  officers.  The  Local  Govern- 
ment Board  therefore  makes  the  requirement  em- 
phatic that  the  appointee  shall  not  be  engaged  in 
private  practice.  In  small  communities,  in  order 
to  make  it  possible  to  secure  such  whole-time  offi- 
cers, it  suggests  that  the  office  be  combined  with 
that  of  medical  inspection  of  schools,  or  some  sim- 
ilar position.  Sometimes  it  arranges  a  combina- 
tion of  territory,  so  that  one  officer  may  look  after 
a  more  extended  area. 

It  does  not  appear  that  veterinary  inspectors 
are  thus  partially  supported  by  the  state,  while 
liolding  their  positions  as  local  officers.    It  is  true 


EXECUTIVE  ORGANIZATION  219 

that  many  veterinary  inspectors  are  practitioners, 
engaged  in  private  practice,  and  devoting  only 
part  time  to  the  governmental  duties.  At  pres- 
ent this  is  probably  unavoidable  to  some  degree; 
but  the  same  arguments  which  show  the  ineffi- 
ciency of  a  medical  officer  of  health  who  is  also 
engaged  in  private  practice  must  also  prove  the 
inadvisibility  of  part-time  govemmental  veterina- 
rians where  the  arrangement  can  well  be  avoided. 

*'No  progress  at  all  can  be  made  towards  ob- 
taining a  skilled  democracy,  unless  the  democracy 
are  willing  that  the  work  which  requires  skill 
should  be  done  by  those  who  possess  it."''' 

174.  Organization  of  a  Health  Department — 
State.  Copying  the  methods  which  have  proven 
successful  in  efficient  commercial  organization,  the 
head  of  the  department  should  be  responsible  for 
every  portion  of  the  work,  and  for  the  efficiency 
of  every  sub-officer,  and  employee.  The  work 
should  be  divided  into  several  bureaus,  each  of 
which  should  have  at  its  head  a  man  specially 
qualified  in  that  branch.  He  may  be  assisted  by 
sub-heads,  each  responsible  for  a  portion  of  the 
work.  The  division  may  be  made  according  to 
subject  or  to  territory,  and  it  should  be  so  ar- 
ranged as  to  reduce  duplication  of  labor  to  a  mini- 
mum. The  same  bacteriological  laboratory  will 
serve  for  the  investigation  of  animal  and  human 
diseases,  for  the  same  principles  govern.  The 
department  should  be  interested  in  study  as  well 
as  administration,  and  a  very  important  portion 
of  its  scope  should  be  found  in  education,  particu- 

"  Mill,     Eepresentative     Gov- 
ernment, 248. 


220      ESSENTIALS  OF  VETERINARY  LAW 

larly  by  publications  and  exhibits.     The  follow- 
ing outline  of  organization  is  suggestive : 

State  Commissioner  of  Health. 
Assistant  Commissioner. 
Administrative  Assistants. 
Infectious  Disease  Inspector  (Human). 

Assistants. 

County  and  Local  Officers. 
State  Veterinarian. 

Deputy  Veterinarians. 
Occupational  Disease  Investigator. 

Assistant  Investigators. 
Lodging  House  Inspector. 

Assistant  Inspectors. 
Dairy  Inspector. 

Assistants. 
Laboratory  Chief. 

Chemists. 

Bacteriologists. 

Pharmacists. 

Water  Analysts. 

Food  and  Drug  Inspectors. 
Eecorder  of  Vital  Statistics. 

Assistants  (including  provision  for  col- 
lecting statistics  relative  to  animal 
diseases). 

Local  Registrars. 
Chief  Clerk. 

Correspondence  Clerks. 

Accountants. 

Librarian. 

Records  Assistant. 
Library  Assistant. 


EXECUTIVE  ORGANIZATION  221 

Editor. 
License  Council,  consisting  of  one  mem- 
ber from  each  of  the  license  exam- 
iners boards,  and  presided  over  by 
the  Commissioner. 
Examining  Board  for 

Physicians,  Surgeons,  Midwives,  Em- 

balmers.  Nurses  (and  Barbers!). 
Pharmacists. 
Dentists. 
Veterinarians. 
Entomologist. 

Field  Assistants. 
Sanitary  Engineer. 

Such  an  organization  would  do  much  to  har- 
monize conflicting  interests,  would  reduce  duplica- 
tion of  work,  and  would  increase  certainty  and 
definiteness  of  action.  Every  possible  subject 
would  thus  come  under  the  personal  responsibility 
of  some  one  individual,  and  under  the  final  super- 
vision of  the  Commissioner. 

175.  Local  Organization.  Except  in  the  larger 
cities  the  local  organization  would  normally  be 
much  more  simple.  Generally  a  single  full  time 
commissioner,  with  the  aid  of  a  clerk,  and  a  part 
time  bacteriologist,  would  be  able  to  look  after  the 
work  properly.  For  veterinary  services  such  a 
department  would  naturally  depend  upon  a  deputy 
state  veterinarian.  If  more  be  needed  he  will  em- 
ploy a  local  practitioner. 

The  organization  in  a  large  city  will  naturally 
be  upon  similar  lines  to  that  of  the  state.  The 
veterinarian  department  should  be  distinct  within 


222      ESSENTIALS  OF  VETERINARY  LAW 

the  large  organization,  and  the  rank  of  the  chief 
should  be  next  to  the  Commissioner,  or  to  his  as- 
sistant. 

For  efficiency  in  operation,  even  when  appointed 
by  the  municipality,  and  paid  by  the  same,  the 
local  commissioner  should  be  a  deputy  of  the  state 
commissioner,  and  the  local  veterinarian  should 
be  also  a  state  deputy.  It  would  be  better  if  no 
local  commissioner  of  health  be  appointed  with- 
out the  previous  approval  of  the  state  commis- 
sioner, and  that  no  local  veterinarian  be  appointed 
without  the  approval  of  the  state  veterinarian. 

According  to  a  plan  tried  out  in  Massachusetts 
under  the  supervision  of  Professor  Phelps,  several 
neighboring  communities  united  to  establish  a 
joint  health  office,  employing  the  services  of  three 
or  more  persons.  To  avoid  possible  legal  ques- 
tions one  may  be  the  officer  of  one  community,  and 
another  that  of  another  town,  but  in  actual  work' 
one  may  be  the  practical  chief,  another  may  look 
after  dairy  and  bakery  inspection,  another  be  the 
veterinarian,  and  another  the  bacteriologist.  A 
similar  plan  has  been  tried  at  LaSalle,  Illinois,  and 
in  both  it  has  worked  well.  It  enables  each  com- 
munity to  have  the  services  of  a  whole  time 
specialist  in  each  department,  and  the  expense  is 
reduced  by  decrease  in  number  of  laboratories, 
etc.  It  would  be  well  if  the  statutes  made  definite 
provision  for  such  establishments,  for  they  are  an 
evident  improvement  upon  the  present  adminis- 
tration in  most  country  communities.  A  some- 
what similar  scheme  was  contemplated  in  sugges- 
tions made  some  time  ago  to  the  effect  that  the 
health  officer  of  the  county  seat  be  the  officer  for 


EXECUTIVE  ORGANIZATION  223 

the  county,  at  least  in  counties  having  less  than 
15,000  inhabitants  outside  of  the  county  seat. 
Such  an  office  should  be  supported  at  least  in  part 
by  the  county. 

Whether  such  combination  be  made  or  not  in 
the  general  health  administration  of  rural  dis- 
tricts, it  is  quite  possible,  and  an  evident  advan- 
tage, for  neighboring  cities  and  villages  to  em- 
ploy the  services  of  the  same  veterinarian.  Thus 
it  would  be  more  easy  to  have  the  full  time  officer, 
who  may  thus  devote  his  entire  attention  to  pre- 
vention of  disease,  rather  than  a  part  of  the  time 
of  one  whose  real  interest  is  in  another  field  of 
study. 

The  man  whose  living  depends  upon  his  treat- 
ment of  either  human  or  animal  diseases  finds  that 
his  private  business  is  most  urgent,  just  when  his 
official  duties  are  most  pressing — during  epi- 
demics. Self-interest  compels  him  to  neglect  his 
public  work. 

176.  Records.  Records  of  the  offices  should  be 
so  kept  that  at  any  time  those  responsible  will  be 
able  to  tell  the  exact  condition  of  affairs  imder 
their  supendsion.  The  local  commissioner  should 
Ivnow  just  how  many  cases  there  may  be  of  infec- 
tious disease  in  his  jurisdiction,  and  where 
located ;  and  by  means  of  his  reports  similar  infor- 
mation should  be  obtainable  in  the  state  office. 

177.  Reports.  The  outbreak  of  any  infectious 
disease  in  a  locality  should  be  at  once  announced 
to  the  state  office,  those  for  animal  diseases  going 
to  the  state  veterinarian.  There  should,  in  addi- 
tion be  weekly  reports  showing  the  number  of  new 
cases,  number  recovered,  and  number  deceased. 


224      ESSENTIALS  OF  VETERINAKY  LAW 

In  case  of  the  removal  of  a  case  of  infectious  dis- 
ease to  another  locality,  or  of  suspicion  that  a  local 
case  arose  through  infection  from  another  juris- 
diction, immediate  reports  should  be  made  to  the 
state  office  and  to  the  other  locality  interested. 
Also,  where  infectious  disease  is  found  in  a  dairy 
district,  even  when  unassociated,  so  far  as  known, 
with  the  dairy  business,  notice  should  be  sent  to 
the  officials  in  charge  of  the  jurisdiction  where  the 
milk  is  sold. 

178.  Guidance  of  Legislation.  It  is  the  busi- 
ness of  the  executive  to  administer,  not  to  enact 
the  laws,  but  he  also  has  a  most  important  legis- 
lative duty,  and  a  duty  which  is  especially  im- 
portant in  such  matters  as  the  prevention  of  dis- 
ease. It  is  the  executive  who  first  meets  with  the 
problems,  and  he  is  peculiarly  able  to  decide  how 
they  should  be  met.  Our  governmental  system 
does  not  permit  him  to  enact  laws,  but  often  he 
may  accomplish  the  same  end  by  orders  based 
upon  laws  already  enacted.  The  advantage  of 
these  special  regulations  and  orders  is  that  they 
can  be  easily  modified  to  meet  changing  condi- 
tions. 

According  to  the  laws  of  many  states  it  is  the 
duty  of  certain  executives  to  recommend  certain 
legislative  changes.  It  is  thus  his  duty,  whether 
so  ordered  by  law,  or  only  by  common  sense,  to 
make  occasional  reports  which  will  set  forth  clear- 
ly and  concisely  the  reasons  why  an  enactment 
should  be  made,  and  what  law  should  be  passed. 
It  is  not  the  right  of  the  executive  to  demand  the 
legislation,  but  to  report  the  needs,  and  the  sug- 
gestive form.    The  legislative  responsibility  rests 


EXECUTIVE  ORGANIZATION  225 

with  the  legislature  of  the  state  (or  the  council 
of  a  city).  This  fact  must  be  fully  recognized  by 
the  executive. 

The  executive  should  also  keep  posted  as  to  any 
changes  in  the  laws  contemplated  by  the  legisla- 
ture, which  might  affect  his  peculiar  field  of  inter- 
est. If  he  detect  faults,  he  should  first  try  to  con- 
vince the  legislators  of  the  fact.  Failing  in  that 
he  might  possibly  be  justified  in  publishing  his 
criticism.  He  should  not  be  a  lobbyist,  nor  a  log 
roller. 


PART  IV 

PERTAINING  TO  ANIMALS 
GENERALLY 


CHAPTER  IX. 


OWNERSHIP  OF  ANIMALS. 


185. 

Wild    or    Domestic    Ani- 

§202. 

Wrongful   Branding. 

mals. 

§203. 

Driving  from  l\ange. 

186. 

Animals   Ferae   Naturae. 

§204. 

Breeding. 

187. 

Dead  Animals. 

§205. 

Service  Fees. 

188. 

Qualifications. 

§206. 

Warranty  of  Sound  He- 

189. 

Dogs. 

redity. 

190. 

Ownership  of  Animals — 

§207. 

Insurance  of  Get. 

How  Obtained. 

§208. 

Liens  for  Service. 

191. 

Estrays. 

§209. 

Liability    of    Owner    of 

192. 

Sale  of  Animals. 

Stallion. 

193. 

Warranty   of   Soundness. 

§210. 

Gelding  a  Stallion. 

194. 

Illustrative  Cases  of  Un- 

§211. 

Liability    of    Owners    of 

soundness. 

Animals. 

195. 

Warranty    of    Character, 

§212. 

Obligation     to     Eestrain 

196. 

Bill  of  Sale. 

Animals. 

197. 

Ownership  of  Increase. 

§213. 

Barbed  Wire  Fences. 

198. 

Proof  of  Ownership. 

§214. 

Frightening   Animals. 

199. 

Marks  and  Brands. 

§215. 

Liability  for  Injuries  on 

200. 

Sale  of  Brand. 

the  Public  Highway. 

201. 

Altering  of  Brand. 

175.  Wild  or  Domestic  Animals.  In  law  a  dis- 
tinction is  made  in  the  ownership  of  different 
kinds  of  animals.  One  may  have  an  absolute 
ownership  in  such  domestic  animals  as  the  horse, 
cow,  sheep,  and  hog.  The  law  gives  him  full  pro- 
tection in  such  ownership.  The  ownership  of  dogs 
is  different.  Dogs  are  called  qualified  property  in 
the  common  law,  under  the  idea  that  they  are  nor- 
mally animals  ferae  naturae,  that  is  wild  animals, 
which  have  been  captured  and  tamed.  By  the 
laws  of  many  states  dogs  are  made  property ;  but 

229 


230      ESSENTIALS  OF  VETERINARY  LAW 

we  have  very  many  decisions  which  insist  that  a 
dog  is  property  only  while  within  the  provisions 
of  the  law.  Thus,  when  the  law  says  that  a  dog 
must  be  licensed,  or  must  wear  a  collar,  or  must 
wear  a  muzzle,  if  the  thing  required  by  law  is 
omitted  by  the  owner  in  the  care  of  his  dog,  the 
animal  will  not  be  considered  within  the  protec- 
tion of  the  law.^  When  the  owner  fails  to  comply 
with  the  law  as  to  how  the  animal  shall  be  kept, 
the  law  may  provide  for  the  summary  destruction 
of  the  animal. 2  The  Vermont  statute  provided 
that  dogs  must  be  licensed  and  wear  collars.  A 
dog  not  wearing  a  collar  was  pursuing  deer,  and 
the  owner  of  the  place  shot  the  dog.  It  was  shown 
that  ordinarily  the  dog  did  wear  a  collar  and  that 
he  was  licensed.  The  court  held  that  the  statutes 
having  required  the  license  and  collar,  the  land- 
holder was  justified  in  shooting  and  killing  the 
dog,  and  that  no  form  of  judicial  proceedings  was 
necessary.  Further,  that  the  motive  of  the  killer 
was  immaterial.^  On  the  other  hand,  no  owner  of 
property  has  an  ownership  or  property  right  in  the 
deer  on  the  place  during  the  closed  season.  A 
beagle  hound  does  not  pursue  deer,  and  the  fact 
that  a  beagle  hound  was  in  the  deer  preserve  would 
not  justify  killing  him  under  provisions  for  the 
protection  of  deer.* 

1  Sentell  v.  New  Orleans,  etc.  s  McDerment  v.  Taft,  83  Vt. 
E.  Co.,  166  U.  S.  698;  Cranston      249,  75  Atl.  276. 

V.    Mayor   of   Augusta,   61   Ga.  ■»  Zanetta    v.    Bolles,    80    Vt. 

572.  345,  67  Atl.  818. 

2  Campau  v.  Langley,  39 
Mich.  451 ;  Blair  v.  Forehand, 
100  Mass.  136. 


OWNERSHIP  OF  ANIMALS  231 

186.  Animals  Ferae  Naturae.  Wild  animals  are 
called  in  law,  ''animals  ferae  naturae."  As  such 
they  are  not  subject  to  ownership.  When  cap- 
tured and  confined,  or  when  tamed,  they  are  re- 
garded as  qualified  property.  ' '  No  one  can  acquire 
an  absolute  property  in  animals  ferae  naturae,  but 
the  ownership  of  such  animals  is  at  most  a  quali- 
fied one,  and  belongs  to  all  the  people  of  the  state 
in  common. ' '  ^  The  state  may  therefore  protect 
such  animals  by  statutes,  prescribing  the  times  and 
manner  for  their  killing;  ^  and  it  may  prohibit  the 
killing  of  certain  animals,  or  killing  them  during 
certain  months;  and  such  prohibition  includes 
such  game  raised  artificially  in  captivity.'^ 

187.  Dead  Animals.  Animals  ferae  naturae 
may  be  made  property  by  killing.  They  thus  be- 
come the  property  of  the  hunter,  and  by  him  may 
be  sold,  if  the  law  does  not  forbid  such  transfer  of 
property  right.  In  some  states  each  hunter  is 
limited  to  a  certain  number  in  the  killing  of  game, 
and  he  may  not  sell  game  to  any  one.  Property 
cannot  be  created  contrary  to  law.^  The  posses- 
sion of  game  in  the  closed  season  has  therefore 
been  held  to  be  illegal,^  even  when  the  property 
right  was  established  by  killing  in  the  open  sea- 
son. This  is  also  true  where  the  game  has  been 
shipped  in   from   another  state,^^  but  the   New 

6  state  V.  Niles,  78  Vt.  266,  10;    Smith   v.    State,    155    Ind. 

62  Atl.  795,  112  Am.  St.  K.  917.  611;  58  N.  E.  1044.  51  L.  E.  A. 

6  Geer  v.  Connecticut,  161  U.  404;  State  v.  Rodman,  58  Minn. 
S.  519.  393,  59  N.  W.  1098. 

7  Commonwealth    v.     Gilbert,  lo  Merritt  v.  People,  169  111. 
160  Mass.  157.  218,  48  N.  E.   325;   Ex  Parte, 

sPuBLic  Health,   187;       Maier,    103    Cal.    476,    37.  Pac. 
Freund,  Police  Power,  528.  402,  42  Am.  St.  R.  129. 

9  Phelps  V.   Racey,   60   N.   Y. 


232      ESSENTIALS  OF  VETERINARY  LAW 

York  court  held  such  a  law  unconstitutional,  as 
being  an  interference  with  the  power  of  Congress 
over  interstate  traffic.^^ 

But  death  of  a  domestic  animal  does  not  termi- 
nate the  owner's  property  right  in  it,  and  while  it 
may  be  required  that  the  carcass  be  so  disposed 
of  that  it  will  not  become  a  nuisance  the  municipal 
authorities  cannot  arbitrarily  deprive  him  of  his 
property  by  giving  it  to  another.  ^^  These  were 
both  cases  relating  to  dead  dogs. 

188.  Qualifications.  Cats,  birds,  and  wild  ani- 
mals are  regarded  in  the  same  class,  though  spe- 
cial statutes  have  been  passed,  as  in  Wisconsin, 
making  such  animals  subjects  of  larceny.  Accord- 
ing to  the  English  law,  game  animals  on  a  preserve 
are  recognized  as  qualified  property  of  the  owner 
of  the  land,  but  that  custom  has  not  been  prev- 
alent in  this  country.  However,  the  killing  of 
game  upon  private  property  may  be  regarded  as 
trespass  and  punished  accordingly.  Where  the 
game  lias  been  captured  and  kept  in  captivity  the 
property  right  would  be  recognized ;  but  if  the  ani- 
mal escaped  from  confinement  property  right 
would  probably  be  considered  as  doubtful. 

189.  Dogs.  The  legal  decisions  relative  to  the 
right  of  property  in  dogs  in  this  country  show  a 
gradual  development.  In  the  earlier  decisions  we 
were  told  that  property  in  a  dog  was  base  prop- 
erty, regarded  as  property  for  certain  puri:)oses 
only,  and  entitled  to  less  consideration  and  protec- 

11  People  V.  Buffalo  Fish  Co.,  Vaiitrcese  v.  McGee,  26  Ind. 
164  N.  Y.  93,  58  N.  E.  34.  App.  525,  60  K  E.  318.    PuB- 

12  Campbell  v.  District  of  Co-  Lie  Health,  450. 
lumbia,    19    App.    D.    C.    131; 


OWNERSHIP  OF  ANIMALS  233 

tion  than  other  domestic  animals. ^^  Then  it  was 
said  that  it  is  not  necessaiy  that  a  dog  have  real 
pecuniary  value  in  order  to  render  him  subject  to 
ownership.^  ^  Gradually  it  came  to  be  recognized 
that  a  dog  is  personal  property  with  a  value.^-"^ 
Today  the  character  of  the  dog  as  property  is 
acknowledged  by  statutes  and  practice. 

Under  the  old  idea,  to  the  effect  that  a  dog  was 
only  property  while  being  kept  strictly  according 
to  the  law,  it  was  nevertheless  held,  that  a  pro- 
vision in  a  statute  that  any  person  may  kill  a  dog 
found  without  a  collar  does  not  make  the  lack  of  a 
collar  such  evidence  that  the  dog  has  no  owner  as 
will  authorize  a  person  to  convert  such  dog  to  his 
own  use.^® 

Though  dogs  are  only  qualified  property  they 
are  recognized  as  property  in  so  far  as  that  the 
owner  may  be  held  liable  for  injuries  inflicted.  A 
knowledge  of  previous  bitings  is  sufficient  to  re- 
quire of  the  owner  that  he  take  special  care;  ^'^  and 
if  there  be  any  suspicion  that  the  animal  may 
have  hydrophobia  he  should  take  particular  care 
to  prevent  bitings.^  ^  If  it  be  shown  that  the  owner 
has  not  exercised  due  care  under  the  circum- 
stances, he  will  be  held  in  civil  damages  for  the 

13  Maclin  's     Case,     3     Leigh,  Mich.  283,  22  Am.  S.  Eep.  529 ; 

809;     Woolf     V.     Chalker,     31  Nehr  v.  State,  35  Neb.  638,  53 

Conn.    121,    81   Am.   Dee.    175;  N.  W.  589,  17  L.  E.  A.  771. 
Davis     V.     Commonwealth,     17  lo  Cummings    v.    Perham,    42 

Grat.    617;    Cole    v.    Hall,    103  Mass.  555. 
111.  30.  IT  Mayer  v.  Kloepfer,  69  Atl. 

11  Parker    v.    Mise,    27    Ala.  182. 
480,  62  Am.  Dec.  776.  is  Buck    v.    Brady,    110    Md. 

15  Anson  v.  Dwight,  18  Iowa  568,  73  Atl.  277. 
241;    Heisrodt    v.    Hnckett,    .34 


234      ESSENTIALS  OF  VETERINARY  LAW 

full  amount  of  the  injuries  inflicted.  Where  a 
small  dog  joined  with  a  hound  in  chasing  sheep, 
and  participated  throughout  to  the  best  of  his 
ability,  his  owner  was  liable,  though  the  hound 
reached  the  sheep  first  and  inflicted  the  more  seri- 
ous wounds.  ^^  Any  one  may  kill  a  mad  dog,  or 
one  supposed  to  be  mad,  or  exposed  to  the  infec- 
tion,-°  but  there  must  be  good  and  sufficient  reason 
for  so  considering  the  animal.  This  rule  would 
not  justify  the  killing  of  a  dog  just  because  he  may 
possibly  have  been  exposed  to  the  danger,  or  be- 
cause he  may  have  chanced  to  bite  a  person  or 
another  animal.  There  is  no  universal  rule  which 
will  hold  the  owner  of  a  dog  liable  for  biting  either 
person  or  other  animal.-^  The  dog  may  have  been 
worried,  or  it  may  have  been  moved  with  some  sud- 
den and  unexpected  emotion,  tliough  habitually 
quiet  and  good  natured.  Or  the  animal  may  have 
been  within  his  legal  rights,  as  where  a  dog  kept 
to  protect  an  automobile  bites  a  person  attempting 
to  get  into  the  rig,  or  to  take  something  from  it, 
or  when  a  watch  dog  bites  a  trespasser  upon  prop- 
erty. 

190.  Ownership  of  Animals — How  Obtained.  A 
property  right  in  animals  may  be  acquired  by  pur- 
chase, by  gift,  by  inheritance,  by  finding  and  cap- 
ture, or  by  natural  increase.  Animals  ferae  na- 
tnrae  may  become  property  by  capture  and  sub- 
jugation, including  killing.  Property  acquired  by 
inheritance  is  a  matter  of  record  in  probate  pro- 

19  Johnson  v.  Lewis,  151  Wis.  21  Kelley  v.  Tillourey,  81 
615,  139  N.  W.  377.                           Conn.  320,  70  Atl.   1031. 

20  Brent   v.    Kimball.    GO    111. 
211. 


OWNERSHIP  OF  ANIMALS  235 

ceedings.  A  gift  implies  the  existence  of  a  donor, 
and  his  will  to  transfer  ownership,  a  thing  to  be 
transferred,  a  receiver  of  the  gift  and  his  accept- 
ance of  the  same.  The  gift  may  be  annulled  at  any- 
time up  to  that  at  which  it  has  been  accepted. 
The  fact  that  the  giver  has  presented  it,  either 
formally  in  person,  or  in  writing,  does  not  trans- 
fer ownership.  The  gift  must  be  accepted,  and  in 
a  question  of  doubt  this  acceptance  should  be 
shown  by  some  act  or  record.  The  acceptance  by 
the  natural  guardians  of  an  infant  may  be  suffi- 
cient for  his  protection  of  a  gift.  For  a  parent  to 
say  to  his  son  "you  may  call  that  colt  yours"  may 
not  be  sufficient  for  the  transfer  of  ownership.  In 
case  of  question  the  parent  must  be  able  to  show 
that  the  colt  was  in  fact  regarded  as  the  property 
of  the  son,  and  that  it  was  so  regarded  universally 
in  the  family.  In  as  much  as  such  questions  are 
very  liable  to  come  to  the  surface  when  some  at- 
tachment or  levy  has  been  made  on  account  of  the 
parent,  and  such  a  claim  then  gives  rise  to  sus- 
picion; and  because  of  the  possible  question  of 
right  of  ownership  in  animals  sometimes  becomes 
serious ;  it  would  seem  that  eveiy  such  gift  should 
be  a  matter  of  record,  and  that  the  record  should 
be  preserved  by  the  person  to  whom  the  animal  is 
given.  This  record  may  be  an  entry  in  the  books 
of  a  parent  presenting  the  animal  to  his  child,  and 
describing  the  animal  so  that  others  could  iden- 
tify it;  or  it  may  be  better  made  in  a  note  which 
can  be  handed  to  the  child,  or  preserved  for  him, 
and  after  describing  the  animal  or  animals  given, 
further  state  the  terms  of  a  gift.  Does  the  parent 
intend  to  give  only  the  animal,  and  let  the  child 


236      ESSENTIALS  OF  VETERINARY  LAW 

pay  for  its  pasturage  and  bam  feed,  or  does  the 
parent  also  give  these  items  until  such  time  as  he 
shall  give  formal  notice  of  the  withdrawal  of  such 
privileges  ? 

Sometimes  an  animal  is  turned  over  to  a  friend 
to  be  kept  and  used  as  his  own,  subject  to  future 
taking  back.  Such  an  animal  may  acquire  a  repu- 
tation in  the  community  as  the  property  of  the 
friend.  Possibly  the  friend  may  honestly  under- 
stand that  the  animal  was  a  gift,  whereas  the 
donor  only  intended  to  confer  the  use  of  the  ani- 
mal. Perhaps  the  animal  loaned  might  be  a  valu- 
able mare,  temporarily  out  of  commission  for  the 
owner's  use,  and  in  the  time  she  was  in  the  care 
of  the  friend  she  gave  birth  to  a  valuable  colt.  The 
ownership  of  that  colt  might  be  much  more  valu- 
able than  that  of  the  dam,  and  when  the  question 
is  raised  neither  could  tell  surely  the  terms  under 
which  the  friend  took  the  mare;  and  the  memory 
of  the  two  persons  interested  might  differ.  To  pre- 
vent possible  misunderstandings  and  possible  un- 
necessary expense  of  litigation,  the  gift  of  an  ani- 
mal to  another  should  always  be  accompanied  by 
a  statement  in  writing;  and  the  acceptance  of  an 
animal  in  trust  for  more  than  a  temporary  period 
should  be  marked  by  a  receipt  given  by  the  bailee, 
and  telling  the  terms  under  which  it  is  accepted. 
(See  Chapter  X.) 

191.  Estrays.  The  finder  of  property  has  an 
ownership  right  in  the  thing  found  as  against 
every  one  but  the  lawful  owner.  Since  cattle  and 
other  animals  are  liable  to  escape  and  become  lost, 
it  is  customary  for  the  different  state  legislatures 
to  prescribe  how  such  property  shall  be  returned 


OWNERSHIP  OF  ANIMALS  237 

to  its  rightful  owner.  In  general  these  laws  pre- 
scribe a  public  advertising  of  the  animal  taken, 
and  if  the  owner  is  known  a  notice  must  be  sent  to 
him  of  the  fact  of  finding.  Since  such  an  animal 
must  be  fed  and  cared  for,  the  owner  is  under  obli- 
gation to  pay  for  the  keep  and  other  necessary  ex- 
penses before  regaining  full  possession.  If  no  one 
is  able  to  prove  ownership,  the  animal  may  become 
the  property  of  the  finder  if  he  so  wishes.  Should 
the  owner  refuse  to  regain  possession  his  refusal 
may  be  taken  as  a  gift  of  the  animal  to  the  finder. 

If  the  finder  shall  have  been  a  party  to  the  escape 
of  the  animal,  as  by  leaving  a  gate  open  to  a  pas- 
ture, or  by  driving  off  animals  on  a  range,  or  by 
enticing  a  dog  from  home,  he  will  acquire  no  rights 
whatever  in  the  finding,  nor  for  the  care  of  the 
animal.  Where  a  dog  has  followed  one  not  his 
owner  away  from  his  home,  and  has  lived  with 
that  person  until  an  attachment  has  been  formed 
for  the  dog,  if  the  owner  has  advertised  the  loss 
where  the  finder  might  reasonably  have  seen  the 
advertisement,  and  sought  diligently  for  his  ani- 
mal, whereas  the  finder  has  neglected  to  advertise 
the  taking  up  of  the  animal,  he  will  acquire  no 
rights  in  the  finding,  nor  for  his  care  of  the  animal 
while  in  his  possession. 

192.  Sale  of  Animals.  No  animal  should  be  pur- 
chased without  some  writing  from  the  seller  to  the 
purchaser.  In  the  case  of  animals  of  small  value 
an  ordinary  bill,  receipted,  describing  the  animals 
sold,  may  be  quite  sufficient.  In  proportion  as  the 
property  sold  is  of  value  this  is  not  sufficient,  but 
a  regular  bill  of  sale  is  to  be  preferred.  According 
to  the  old  common  law  *  *  an  implied  warranty  was 


238      ESSENTIALS  OF  VETERINARY  LAW 

annexed  to  every  sale,  in  respect  to  the  title  of  the 
vendor;  and  so  too  in  our  law,  a  purchaser  of 
goods  and  chattels  may  have  a  satisfaction  from 
the  seller,  if  he  sells  them  as  his  own  and  the  title 
proves  deficient,  without  any  express  warranty  for 
that  puipose.  But  with  regard  to  the  goodness  of 
the  wares  so  purchased,  the  vendor  is  not  bound 
to  answer;  unless  he  expressly  warrants  them  to 
be  sound  and  good,  or  unless  he  knew  them  to  be 
otherwise,  and  hath  used  any  art  to  disguise  them, 
or  unless  they  turn  out  to  be  different  from  what 
he  represented  them  to  the  buyer.  "^^  The  note 
added  to  the  above  quotation  is  so  clear  and  ap- 
plicable in  the  present  discussion  that  it  is  here 
added.  *'Mr.  Christian  observes,  that  the  follow- 
ing distinctions  seem  peculiarly  referable  to  the 
sale  of  horses.  If  the  purchaser  gives  what  is 
called  a  sound  price,  that  is,  such  as  from  the  ap- 
pearance and  nature  of  the  horse  would  be  a  fair 
and  full  price  for  it,  if  it  were  in  fact  free  from 
blemish  and  vice,  and  he  afterwards  discovers  it 
to  be  unsound  or  vicious,  and  he  returns  it  in  a 
reasonable  time,  he  may  recover  back  the  price  he 
has  paid,  in  an  action  against  the  seller  for  so 
much  money  had  and  received  to  his  use,  pro- 
vided he  can  prove  the  seller  knew  of  the  unsound- 
ness or  vice  at  the  time  of  the  sale;  for  the  con- 
cealment of  such  a  material  circumstance  is  a 
fraud,  which  vacates  the  contract.  But  if  a  horse 
is  sold  with  an  express  warranty  by  the  seller  that 
it  is  sound  and  free  from  vice,  the  buyer  may  main- 
tain an  action  upon  this  warranty  of  special  con- 

22  Chitty  's     Blackstone,      II, 
451. 


OWNERSHIP  OF  ANIMALS  239 

tract,  without  returning  the  horse  to  the  seller, 
or  without  even  giving  him  notice  of  the  unsound- 
ness or  viciousness  of  the  horse;  yet  it  will  raise 
a  prejudice  against  the  buyer's  evidence,  if  he  does 
not  give  notice  within  a  reasonable  time  that  he 
has  reasons  to  be  dissatisfied  with  his  bargain. ' '  ^^ 
It  has  often  been  held  that  the  implied  warranty 
does  not  bind  in  respect  of  obvious  and  patent 
defects.^'* 

193.  Warranty  of  Soundness.  There  is  an  old 
doctrine  of  the  common  law  which  applies  espe- 
cially to  the  sale  of  animals — ''Caveat  emptor/' 
that  is  ''let  the  buyer  beware."  It  may  be  said 
that  the  basis  of  the  doctrine,  as  applied  to  the 
sale  of  animals,  is  to  be  found  in  the  idea  that  men 
are  equally  learned  and  equally  ignorant  relative 
to  animals.  Unless  there  has  been  an  evident  at- 
tempt to  conceal  a  defect,  or  there  has  been  made 
an  express  warranty  as  to  character  and  sound- 
ness, there  has  generally  been  an  agreement  in 
the  decisions  to  the  effect  that  the  purchaser  of 
animals  must  run  his  own  risks.  Sometimes  the 
principle  has  been  overworked  to  a  ridiculous  de- 
gree. The  selling  of  a  glandered  horse  was  not 
considered  an  illegal  act  at  the  common  law,  even 
when  the  seller  knew  the  condition. ^^"^  "Where  a 
trade  has  been  made,  and  one  of  the  parties  thus 
got  rid  of  a  glandered  animal,  it  was  held  that  in 
so  doing  he  was  not  guilty  of  such  fraudulent  act 
as  would  require  suiTender  on  replevin  of  the 

23Chitty's  Blackstone,      II,  24a  Hill  v.   Ball,   2   H.   &   N. 

451,  note  22.  298. 

21  Chitty  's  Blackstone,      II, 

451,  note  22,  citing  cases. 


240      ESSENTIALS  OF  VETERINARY  LAW 

horse  received  in  trade. ^^  However,  the  bringing 
of  an  animal  afflicted  with  such  an  infectious 
disease  as  glanders  into  a  public  place  is  an  indict- 
able offense  at  the  common  law,  even  though  the 
defendant  was  not  aware  of  the  full  extent  of  the 
contagiousness  of  the  ailment.-^  Although  it  was 
held  that  the  bringing  of  animals  afflicted  with  an 
infectious  disease  into  a  market,  in  spite  of  the 
prohibition  of  such  bringing  of  them  in,  did  not 
constitute  a  warranty  of  their  soundness,-'^  this 
doctrine  was  later  very  properly  reversed  by  Lord 
Blackburn,-^  who  held  that  such  offering  of  the 
animal  for  sale  in  a  public  place  was  a  practical 
statement  that  so  far  as  the  owner  knew  the  ani- 
mal was  not  so  suffering  from  an  infectious  disease. 
It  has  also  been  held,  we  believe  wrongfully,  that 
the  fraudulent  selling  of  a  glandered  horse  to  one 
ignorant  of  the  fact  will  not  make  the  seller  liable 
for  the  death  of  a  person  who  contracted  the 
disease  by  coming  into  contact  with  the  horse.^^ 
The  court  was  influenced  in  this  case  by  the  rela- 
tive infrequency  of  the  accidental  occurrence  of 
glanders  in  human  beings,  but  such  a  decision 
would  have  the  effect  to  increase  the  frequency. 
Experience  shows,  also,  that  glanders  in  human 
beings  is  frequently  unrecognized  by  attending 
physicians  who  have  not  had  special  experience 
with  this  disease.    Cases  are  diagnosticated  per- 

25  Havey  v.  Petrie,  100  Mich.  28  Bodger  v.  Nicholls,   28   L. 
190.                                                       T.  N.  S.  441. 

26  Keg.  V.  Henson,  Dears,  C.  29  State  v.  Fox,  79  Md.  .514. 
C.   24. 

27  Ward    V.    Hobbs,    4    App. 
Cas.  13. 


OWNERSHIP  OF  ANIMALS  241 

haps  as  tuberculosis,  until  bacteriologic  examina- 
tion shows  the  presence  of  the  Bacillus  mallei. 
Human  cases  are  frequently  discovered  first  by- 
veterinarians  who  have  been  called  to  treat  ani- 
mals on  the  place,  and  accidentally  learn  of  the 
human  patients. 

A  glandered  horse  is  today  recognized  as  a  dan- 
ger to  the  community,  and  as  such  the  authorities 
generally  order  its  destmction.  It  may  therefore 
be  regarded  as  practically  worthless  for  any  pur- 
pose. It  was  held  in  one  case  that  where  a  horse 
is  worthless  for  any  purpose  there  is  a  total  lack 
of  consideration,  and  the  trade  is  therefore  void- 
able, irrespective  of  the  matter  of  warranty.^*^ 
''Under  the  Iowa  code,  the  fact  that  the  buyer  of 
sheep  knew  that  they  were  afflicted  with  a  con- 
tagious disease  will  not  prevent  the  sale  from 
being  invalid ;  but  it  is  otherwise  where  the  seller 
did  not  know. ' '  ^^  Where  the  seller  of  a  diseased 
animal  had  no  special  cause  for  suspicion  of  the 
infectious  character  of  the  ailment,  it  was  held 
that  the  doctrine  of  Caveat  emptor  applied.^- 
Where  a  seller  of  diseased  animals  knowingly  war- 
ranted them  free  from  infectious  disease,  he  has 
been  held  liable  for  the  injury  to  other  animals,^^ 
even  though  he  did  not  know  that  the  purchaser 

30  Danforth  &  Co.  v.  Crook-  33  Smith  v.  Green,  1  C.  P.  D. 
shanks,  68  Mo.  App.  311.  92;  MuUett  v.  Mason,  H.  &  R. 

31  Ingham,  The  Law  of  Ani-  779;  Stevens  v.  Bradley,  89 
mals,  88,  citing  Caldwell  v.  Bri-  Iowa  174;  .Joy  v.  Bitzer,  77 
dal,  48  Iowa  15.  Iowa  73;  Faris  v.  Lewis,  2  B. 

32  Eothwell  V.  Milner,  8  Man-  Mon.  375;  Jeffrey  v.  Bigelow, 
itoba    472 ;    cited    by    Ingham,  13  Wend.  518. 

88. 


242      ESSENTIALS  OF  VETERINARY  LAW 

had  other  animals.^^  (§§  13, 112.)  Where  the  price 
and  charges  for  delivery  were  paid,  but  no  deliv- 
ery was  made,  it  was  held  that  the  purchaser 
could  recover  the  money  paid,  and  the  death  of  the 
animal  after  the  time  for  delivery  was  no  de- 
fense.^^ 

The  general  rule  as  to  unsoundness,  at  present 
accepted,  in  spite  of  some  few  decisions  to  the 
contrary  in  the  past,  is  that  laid  down  by  Lord 
Ellenborough :  "To  constitute  unsoundness,  it 
is  not  essential  that  the  infirmity  should  be  of  a 
permanent  nature;  it  is  sufficient  if  it  render  the 
animal  for  the  time  unfit  for  service,  as,  for  in- 
stance, a  cough,  which  for  the  present  renders  it 
less  useful,  and  may  ultimately  prove  fatal.  Any 
infirmity  which  renders  a  horse  less  fit  for  present 
use  and  convenience  is  an  unsoundness. ' '  ^^ 

194.  Illustrative  Cases  of  Unsoundness.  Fraud 
and  deceit  are  not  countenanced  by  law.  An  act 
done  in  order  to  hide  a  defect,  and  make  its  detec- 
tion less  likely,  is  fraudulent  in  character.  A 
"nerved"  horse  is  particularly  unsound,  not  only 
because  of  the  foot  disease  which  is  thus  covered 
up,  but  because  the  cutting  of  the  nerve  in  the  leg 
is  performed  in  order  that  the  animal  may  not 
show  tenderness  of  the  foot  when  it  exists.-''^  Bone 
spavin,  even  when  not  accompanied  with  lame- 
ness, is  unsoundness.^^    Crib  biting  may  be  only 

34  Sherrod     v.     Langdon,     21  37  Best    v.    Osborne,    Ry.    & 
Iowa    518;    Packard    v.    Slack,       Mo.   290. 

32  Vt.  9.  38  Watson  v.  Denton,  7  C.  & 

35  Winn    V.    Morris,    94    Ga.      P.    85,    Hoffman   v.    Gates,    77 
452.  Ga.  701. 

36  Elton  V.  Jordan,  1  Stark. 
127 ;  Elton  v.  Brogden,  4  Camp. 
281. 


OWNERSHIP  OF  ANIMALS  243 

a  vice;  but  where  it  is  associated  with  some  phys- 
ical defect  that  defect  may  be  an  unsoundness, 
either  caused  by,  or  causing,  the  habit.^^ 

Although  it  is  customaiy  to  castrate  mule  colts, 
the  absence  of  castration  will  not  be  considered 
unsoundness,^'^  though  it  might  be  considered  as 
a  deficiency,  just  as  an  unbroken  colt  is  deficient 
as  compared  with  one  which  has  been  trained  for 
driving.  Similarly,  though  pregnancy  may  inter- 
fere with  a  mare's  usefulness  for  many  purposes, 
it  is  not  an  unsoundness.^^  Roaring  may  be  a 
habit.  It  is  not  unsoundness,  but  it  may  be  an 
evidence  of  unsoundness,  when  caused  by  disease 
or  organic  defect.^^  The  distinction  between 
symptom  and  the  disease  is  not  sufficiently  recog- 
nized by  many  judges.  A  cough  is  a  symptom  or 
evidence  of  unsoundness,  not  unsoundness  itself. 
Lameness  is  not  unsoundness,  but  the  evidence  of 
a  defect  which  is  unsoundness.  "While  in  most 
cases  this  distinction  may  not  be  essential,  in  such 
cases  as  cribbing,  or  roaring,  the  distinction  is 
essential.  The  older  writers  made  no  distinction 
between  roaring  and  whistling.  In  practice  today 
a  distinction  is  made,  and  according  to  present 
knowledge  roaring  is  always  a  symiDtom  of  a 
physical  defect — a  paralysis  of  the  vocal  cord. 
The  symptom  may  be  removed  by  excision  of  the 
defective  cord;   but  though  the  animal  may  be 

39  Washburn    v.    Ciuldihy,    8  *i  "Whitney      v.      Taylor,      54 

C4ray  430;    Walker   v.   Hoising-  Barb.  536. 

ton,  43  Vt.  608 ;  Hunt  v.  Gray,  42  Bassett  v,   Collis,  2   Camp. 

35  N.  J.  L.  227.  523. 

•*o  Duckworth    v.    Walker,    46 
X.  C.  507. 


244      ESSENTIALS  OF  VETERINARY  LAW 

quite  serviceable  for  an  indefinite  period,  he  is 
still  unsound. 

A  lameness  which  interferes  with  usefulness  is 
unsoundness,  even  temporarily;^^  and  a  horse  is 
unsound  when  one  leg  is  weaker  than  the  others.^^ 

195.  Warranty  of  Character.  ''If  a  man  sells 
a  horse  generally  he  warrants  no  more  than  it  is 
a  horse;  the  buyer  asks  no  question  and  perhaps 
gets  the  animal  the  cheaper.  But  if  he  asks  for 
a  carriage  horse  or  a  horse  to  carry  a  female  or  a 
timid  and  infirm  rider,  he  who  knows  the  qualities 
of  the  animal  and  sells,  undertakes  on  every  prin- 
ciple of  honesty  that  it  is  fit  for  the  purpose  indi- 
cated. The  selling  upon  a  demand  for  a  horse 
with  particular  qualities  is  an  affirmation  that  he 
possesses  those  qualities.  "^^ 

The  sale  of  a  stallion  or  bull  for  breeding  pur- 
poses is  not  necessarily  a  guaranty  of  his  ability 
in  that  direction,  especially  in  the  absence  of 
definite  information  upon  that  subject.^^  But 
where  producers  and  dealers  in  horses  for  breed- 
ing purposes  sell  a  stallion  to  one  who,  to  their 
knowledge,  wishes  to  use  him  for  that  purpose, 
there  is  an  implied  warranty  that  he  is  reasonably 
fit  for  such  purpose,*^  and  that  he  is  not  prevented 
by  illness,  weakness,  or  any  other  infirmity  from 

43  Elton  V.  Brogden,  4  Camp.  46  Glidden   v.   Pooler,   50   111. 
281.  App.   36;    Taylor   v.    Gardiner, 

44  Elton   V.   Jordan,    1  Stark  8  Manitoba  310 ;  Scott  v.  Een- 
127.  ick,  1  B,  Mon.  63;  McQuaid  v. 

45  Jones   V.    Bright,    5  Bing.  Eoss,    85    Wis.    492;    White   v. 
533.    (Per   Best,    C.    J.)  Also,  Stelloh,  74  Wis.  435. 

Smith  V.  Justice,  13  Wis.  600 ;  47  Merch.  &  Mech.  Sav.  Bank 

Danforth    v.    Crookshanks,    68       v.  Fraze,  9  Ind.  App.  161. 
Mo.  App.  311. 


OWNERSHIP  OF  ANIMALS  245 

being  able  to  exercise  his  breeding  qualities.'*^ 
So  where  the  seller  of  a  bull  knew  that  he  was 
without  the  power  of  propagation,  but  did  not 
disclose  the  fact,  it  was  held  that  he  was  liable  in 
an  action  for  his  deceit.^^  A  stallion  sold  with  a 
warranty  as  '*a  foal  getter"  was  held  not  to  ful- 
fill the  terms  of  the  guaranty  when  only  eight  out 
of  fifty-five  mares  served  were  with  foaL^°  A  bill 
of  sale  guaranteeing  a  stallion  as  a  breeder  does 
not  imply  a  guarantee  that  he  is  pure-bred.^  ^ 

In  regard  to  the  character  of  the  animal  it  must 
be  remembered  that  an  animal  which  is  gentle 
and  reliable  in  the  handling  of  one  person  may  be 
quite  the  reverse  with  another,  possibly  without 
any  apparent  reason. 

It  is  very  evident  from  the  foregoing  that  it  is 
for  the  decided  advantage  of  the  buyer  that  the 
bill  of  sale  state  that  the  animal  is  sound,  and 
free  from  vicious  traits;  but  it  is  of  such  decided 
disadvantage  to. the  seller  that  he  should  not  in- 
sert such  a  statement  unless  he  is  willing  to 
assume  the  added  responsibility  in  the  matter. 

The  bill  of  sale  should  describe  the  animal,  or 
animals  sold,  with  as  much  definiteness  as  is  con- 
veniently possible.  Of  a  horse  it  should  give  his 
age,  color  and  sex,  with  special  marks.  Of  a  flock 
of  sheep  it  should  give  the  number,  breed,  number 
of  sheep  in  each  class  (ewes,  rams,  etc.),  with 
special  marks.    Of  cattle  on  the  range,  in  addition 

48Budd  V.  McLaughlin,  10  Iowa,  545;  Brown  v.  Doyle,  69 
Manitoba  75.  Minn.  543. 

■49  Maynard    v.    Maynard,  49  si  First     National     Bank     v. 

Vt.  297.  Hughes,   5   Cal.  U.   C.  454,   46 

BoMcCorkell    v.    Karhoff,  90      Pae.  272. 


246      ESSENTIALS  OF  VETERINARY  LAW 

to  such  points  as  are  indicated  for  sheep  in  pas- 
ture it  should  tell  where  the  cattle  are  running. 

All  encumbrances  upon  the  title  to  the  animals, 
including  possible  liens,  should  be  stated  in  the 
warranty  which  the  bill  of  sale  is.  If  an  animal 
has  a  name,  as  of  a  horse,  it  should  be  given. 

196.  Bill  of  SaJe.  The  following  is  a  conven- 
ient form  for  a  bill  of  sale : 

Know  all  men  by  these  presents  that  I, , 

of ,  in  the  county  of ,  and 

state  of ,  in  consideration  of 

dollars  to  me  paid  by ,  of , 

in  the  county  of ,  state  of , 

the  receipt  whereof  is  hereby  acknowledged,  do 
hereby  grant,  sell,  transfer  and  deliver  unto  the 

said the  following  animals,  namely : . . . 

,  to  have  and  to  hold,  all  and 

singular  of  such  described  animals  to  the  said 

,  and  his  executors,  administrators, 

and  assigns,  to  their  own  use  and  behoof  forever. 

And  I  hereby  covenant  with  the  grantee  that  I 
am  the  lawful  owner  of  the  said  animals ;  that  they 
are    free    from    encumbrance    except    as    herein 

stated ;  that  I  have  good  right  to  sell 

the  same  as  aforesaid ;  and  that  I  will  warrant  and 
defend  the  same  as  against  the  lawful  claims  and 
demands  of  all  persons. 

In  witness  whereof  I,  the  said ,  here- 
unto set  my  hand  and  seal,  this,  the day 

of ,  19. . . .,  in  the of , 

county  of ,  and  state  of 

(Signed) 


OWNERSHIP  OF  ANIMALS  247 

A  defendant  who  sold  a  horse,  giving  false  pedi- 
gree, showed  that  he  could  not  read,  and  he  be- 
lieved that  the  pedigree  made  out  by  others  was 
true.  The  horse  had  passed  through  several  hands, 
and  there  were  many  horses  of  that  pedigree  in 
the  neighborhood.  A  verdict  was  returned  that 
he  was  not  guilty  of  fraud.^-  The  Eevised  Stat- 
utes of  Maine  prohibited  the  sale  of  animals  in- 
fected with  tuberculosis.  A  sold  oxen  to  B,  tak- 
ing B  's  note  therefor.  The  oxen  died  of  tubercu- 
losis. A  sued  for  the  collection  of  the  note,  but 
the  court  held  that  he  could  not  recover  if  the 
cattle  were  infected  when  they  were  sold.^^ 

An  executory  contract  for  the  future  delivery  of 
cattle  of  which  the  seller  is  not  then  the  owner  is 
not  void  as  a  wagering  of  contract,  where  the  par- 
ties intend  an  actual  delivery  and  acceptance. ^^ 

197.  Ownership  of  Increase.  According  to  the 
common  law  the  ownership  of  the  increase  belongs 
to  the  owner  of  the  mother,^^  in  the  absence  of 
contract  or  agreement  to  the  contrary  ^*^  (except 
in  the  case  of  swans,  etc.).  Thus,  in  the  replevin  of 
a  mare  and  three  colts,  the  ownership  of  the  mare 
was  held  to  carry  with  it  the  ownership  of  the  colts 
which  were  conceded  to  be  her  offspring.^^  The 
fact  that  one  paid  taxes  on  the  mare,  and  paid 
service  fees,  and  expenses  of  rearing  her  colts, 

52  People  V.  Umlauf,  88  Mich.  ss  Stanfield  v.  Stiltz,  93  lud. 
274,  50  N.  W.  251.                              249;  Arkansas  Val.  L.,  etc.,  Co. 

53  Church     V.     Knowles,     101      v,  Mann,  130  U.  S.  69. 

Me.  264,  63  Atl.  1042.  so  First   Nat.   Bank   v.    Eieh- 

5^  Fletcher     v.     Jacob     Dold  meier,  153  Iowa  154,  133  N.  W. 

Packing  Co.,  58  N.  Y.  S.  612;  454. 

affirmed  169  N,  Y.  571,  61  N.  57  Dunning     v.     Crofutt,     81 

E.  1129.  Conn.  101,  70  Atl.  630. 


248      ESSENTIALS  OF  VETERINARY  LAW 

with  the  consent  of  her  owner,  was  held  not  to 
give  him  a  title  to  the  colts.  The  fact  that  one 
owned  the  mare  when  the  colts  were  born  was  com- 
petent evidence  for  jury  on  an  issue  of  ownership 
of  the  colts. ^^  This  question  would  have  been  an- 
swered if  the  party  caring  for  the  mare  had  made 
a  written  contract  with  the  owner.  Where  one 
hires  a  mare  for  use  in  breeding,  the  increase  of 
the  animal  belongs  to  the  hirer.^'^  The  progeny 
of  a  mare  which  is  the  separate  property  of  a  wife 
is  also  her  separate  propertj^ ;  *^'^  but  the  owner- 
ship of  the  mare  by  the  wife  should  be  capable  of 
proof  by  documentary  evidence,  though  not  neces- 
sarily so. 

Putting  a  mare  in  pasture  in  consideration  of 
her  services  does  not  entitle  the  owner  of  the  pas- 
ture to  the  increase.*'^  When  stock  is  loaned  the 
ownership  of  the  increase  is  in  the  loaner.^-  But 
if  the  stock  be  hired  for  a  definite  period  the  own- 
ership of  the  increase  belongs  to  the  usufructu- 
ary,^^  for  at  that  time  he  has  an  ownership  in  the 
dam.*'^  A  colt  born  to  a  mortgaged  mare  is  held 
also  under  the  mortgage.*^^     A  colt  foaled  after 

58  Morse  v.  Patterson,  1  Kas.  154 ;  Putnam  v.  Wyley,  8  Johns. 

App.  577,  42  Pac.  255.  432;    Concklin    v.    Havens,    12 

59McCarty     v.     Blevins,     13  Johns.     314;      Wood     v.     Ash, 

Tenn.  195,  26  Am.  Dec.  262.  (Eng.)      Owen      139;      August 

GoKelley  v.  Grundy,   20  Ky.  Brandt  &  Co.  v.  Verhagen,  152 

L.  1081,  45  S.  W.  100.  N.  W.  448. 

61  Allen  V.  Allen,  2  P.  &  W.  er.  Kellogg     v.     Loveley,     46 
166.  Mich.  131,  8  N.  W.  699,  41  Am. 

62  0rser    v.    Storms,    9    Cow.  R.  151;  Stewart  v.  Ball,  33  Mo. 
687.  154;  Sawyer  v.  Gerrish,  70  Me. 

63  2  Kent  360.  254,    Am.   Eng.    Enc.   of    Law, 

64  Garth   v.    Everett,    16   Mo.  349. 
490;    Stewart  v.   Ball,   33   Mo. 


OWNERSHIP  OF  ANIMALS  249 

a  levy  on  the  dam  is  also  held  on  the  levy.^*^ 
In  an  action  brought  for  the  conversion  of  an 
animal  with  foal,  as  by  unauthorized  sale,  if  the 
mare  gives  birth  to  the  colt  the  fact  must  be 
brought  to  the  knowledge  of  the  juiy,  or  there  will 
be  no  future  redress  in  the  matter.^"^ 

The  unboni  colt  may  be  the  subject  of  a  trans- 
fer of  ownership.  A  promise  to  deliver  the  in- 
crease of  animals  is  a  good  consideration  for  their 
use.*'^  An  agreement  for  valuable  consideration 
to  deliver  the  first  female  colt  of  a  certain  mare 
was  a  valid  sale,  though  the  colt  was  not  then  in 
existence.^^  Two  persons,  one  the  owner  of  the 
horse,  and  the  other  the  owner  of  the  mare,  made 
a  contract  that  a  third  party,  an  infant,  should 
have  the  increase.  This  was  held  valid  as  against 
the  claims  of  ownership  through  the  mare.^*'  A 
told  his  minor  son  B  that  if  he  would  take  a  mare 
belonging  to  A  to  horse,  and  pay  for  the  same,  the 
colt  should  be  his.  It  w^as  held  that  B  had  own- 
ership in  the  colt  as  against  the  creditors  of  A.'^^ 
Where  a  mare  is  sold  on  conditions,  the  seller  re- 
tains ownership  in  the  colts  until  the  fulfillment 
of  the  conditions.'^^ 

198.  Proof  of  Ownership.  A  properly  executed 
bill  of  sale  is  the  best  possible  evidence  of  owner- 

66  Talbot   V.    Magee,   59   Mo.  Dec.  262 ;  Hull  v.  Hull,  48  Conn. 
App.  347.  250,  40  Am.  E.  165. 

67  Garth   v.    Everett,    16    Mo.  ti  LinnendoU      v.      Doe,      14 
490.  Johns.  221. 

68  Putnam  v.  Wyley,  8  Johns.  ^2  Buckmaster    v.    Smith,    22 
432,  5  Am.  Dec.  346.  Vt.  203;  Elmore  v.  Fitzpatrick, 

69  Fonville  v.  Casey,  1  Murph.  56  Ala.  400 ;  Faith  v.  State,  32 
(N.  C.)   389.  Tex.  373;  Espy  v.  State,  32  Tex. 

ToMcCarty      v.      Blevins,      5       375. 
Yerg.   (13  Tenn.)   195,  26  Am. 


250      ESSENTIALS  OF  VETERINARY  LAW 

ship.  By  a  statute  in  Texas  it  was  provided  that 
for  the  sale  of  live  stock  running  at  large  on  a 
range  a  bill  of  sale  was  required,  and  possession 
without  a  bill  of  sale  was  considered  as  prima  facie 
evidence  of  illegality  J  ^  Such  a  law  is  not  retro- 
active, as  to  cattle  in  possession  before  its  enact- 
ment."^ The  bill  must  be  executed  at  the  time  of 
sale .  and  delivery.'^^  The  statute  is  constitu- 
tionaL^^^  But  the  presumption  that  possession  is 
illegal  may  be  rebutted  by  evidence  that  it  is 
legaL"^^ 

199.  Marks  and  Brands.  A  common  method  of 
designating  ownership  is  by  the  use  of  brands  or 
marks.  This  form  of  evidence  is  especially  neces- 
sary where  the  animals  are  upon  a  range,  where 
the  herd  of  one  stockman  may  become  mixed  with 
that  of  another.  For  this  reason,  especially  in  the 
western  states,  it  is  quite  customary  that  legisla- 
tures make  special  provisions  governing  the  use  of 
brands. 

For  greatest  value,  and  for  the  protection  of 
the  person  making  the  brand,  it  is  necessary  that 
the  mark  be  recorded;  and  statutes  so  provide. 
The  brand  should  be  recorded  in  the  county  where 
the  stock  runs,  but  it  need  not  be  recorded  in  every 
county  in  M^iicli  they  run.^^  It  may  be  recorded 
in  as  many  counties  as  the  owner  may  wish,^* 

73  Black  V.  Vaughan,  70  Tex.  47,  7  S.  W.  604;  Wells  v.  Little- 
47,  7  S.  W.  604.  field,    59    Tex.    556 ;    Florey   v. 

T4  Espy  V.  State,  32  Tex.  375.       State,  13  Tex.  App.  665. 

"  Houston  V.  State,  13  Tex.  ^7  Thompson  v.  State,  26  Tex. 

App.  595.  App.  466. 

75a  Faith    V.    State,    32  Tex.  "« Atterberry     v.     State,     19 

373.  Tex.  App,  401. 

70  Black  V.  Vaughan,  70  Tex. 


OWNERSHIP  OF  ANIMALS  251 

and  it  is  wise  to  record  in  each,  county  in  which 
the  stock  are  likely  to  be  found  in  large  numbers. 
Where  the  statute  provides  that  no  brand  shall  be 
recorded  unless  the  record  also  states  the  part  of 
the  animal  branded,  it  was  held  that  a  record  of 
a  brand  "on  the  shoulder  or  side"  was  prohib- 
ited."^ In  other  words,  the  brand  should  always 
be  placed  upon  the  same  part  of  the  animal,  and 
the  place  selected  should  be  one  which  is  conven- 
ient for  identification  with  the  least  trouble.  Un- 
less the  statute  requires  that  the  kind  of  animal 
upon  which  the  brand  is  used  be  recorded,  that 
need  not  be  stated.^*^  It  has  sometimes  been  a 
practice  that  the  stock  owner  have  one  brand  for 
his  cattle,  and  another  for  his  horses.  This  prac- 
tice is  objectionable. 

An  unrecorded  mark  may  be  an  evidence  of 
ownership, ^^  and  it  may  be  used  as  an  evidence 
of  the  identity  of  an  animal.^^  A  statute  pro- 
viding that  a  party  shall  have  but  one  mark  does 
not  prohibit  the  owner  from  changing  his  mark.^'* 
In  Oregon  it  was  held  that  the  record  of  a  brand 
of  stock  in  the  office  of  the  clerk  of  the  county 
court  is  not  constructive  evidence  that  an  animal 
so  branded  belongs  to  the  owner  of  the  brand. ^^ 
On  the  other  hand,  in  Texas  it  was  held  that  a 
registered  cattle  brand  is  prima  facie  proof  of 

79  Reese  v.  State,  43  Tex.  Cr.  375,  48  Pac.  502;  State  v.  Car- 
539,  67  S.  W.  325.  delli,  19  Nev.  319,  10  Pac.  433; 

80  Ledbetter     v.      State,      35  Poage  v.  State,  43  Tex.  4o4. 
Tex.  Crim.  195,  32  S.  W.  903.  83  McCIure  v.  Sheek.  68  Tex. 

81  Dixon    V.    State,    19    Tex,  426,  4  S.  W.  552. 

134;    Ix)ve    V.    State,    15    Tex.  s*  Stewart  v.  Hunter,  16  Ore. 

App.  563.  62,   16  Pac.  876,  8  Am.  St.  R. 

8^  Brooke  v.   People,   23   Col.      267. 


252      ESSENTIALS  OF  VETERINARY  LAW 

ownership  of  cattle  so  branded.^^  It  was  also 
held  that  a  mark  or  brand  constitutes  of  itself  no 
evidence  of  ownership  unless  the  mark  or  brand 
has  been  recorded.^*^  A  statute  making  a  recorded 
brand  evidence  of  ownership  does  not  exclude 
other  evidence  to  show  ownership. ^'^ 

A  judgment  foreclosing  a  mortgage  on  cattle 
which  were  designated  by  brands  given  in  the 
mortgage  will  not  be  set  aside  on  the  ground  that 
the  mortgage  did  not  cover  the  increase,  in  the 
absence  of  evidence  that  the  increase  of  the  cattle 
were  branded  with  the  brands  descriptive  of  the 
stock  covered  in  the  mortgage.^^  Where  the  de- 
fendant, in  replevin  for  horses,  relies  solely  on  a 
certain  brand  on  horses  as  evidence  of  ownership, 
evidence  of  the  sale  of  horses  so  branded  to  the 
defendant  is  incompetent  without  jDroof  that  such 
brand  has  been  recorded  by  the  grantor.^^ 

200.  Sale  of  Brand.  Where  the  law  permits  an 
assignment  of  brand,  but  does  not  specify  how, 
it  is  proper  to  admit  parole  evidence  of  such  as- 
signment made  before  the  passage  of  the  law 
requiring  recording.^^  Under  a  contract  whereby 
defendant  sold  his  brand  to  plaintiff,  defendant 
to  have  his  horses  on  the  range,  plaintiff  to  be  the 

85  De  Garca  v.  Galvin,  55  563 ;  Hutton  v.  State,  7  Tex.  Cr. 
Tex.  53;  Beyman  v.  Black,  47  App.  44;  State  v.  Cardelli,  19 
Tex.  558.  Nev.   319,   10   Pac.   433;   John- 

86  Herber  v.  State,  7  Tex.  69 ;  son  v.  State,  1  Tex.  App.  333. 
Poag  V.  State,  40  Tex.  151 ;  88  Edwards  v.  Osman,  84 
Corn  V.  State,  41  Tex.  301 ;  Al-  Tex.  656,  19  S.  W.  868. 

len  V.  State,  42  Tex.  517;   Els-  so  Murray    v.    Trinidad    Nat. 

ner  v.  State,  22  Tex.  App.  687,  Bank,  5  Col.  359,  38  Pac.  615, 

3  S.  W.  474;  State  v.  Cardelli,  so  Chestnut  v.  People,  21  Col. 

19  Nev.  319,  10  Pac.  433.  512,  42  Pac.  656. 

87  Love  V.  State,  15  Tex.  App. 


OWNERSHIP  OF  ANIMALS  253 

judge,  plaintiff  could  not  arbitrarily  determine 
that  an  animal  belonging  to  defendant  was  not 
his.^i 

201.  Altering  of  Brand.  Anything  which 
makes  proof  of  property  more  difficult  is  consid- 
ered as  altering  a  brand.^^  The  offense  may  be 
committed  by  merely  clipping  the  hair  at  the  orig- 
inal brand.^^  Putting  on  a  new  brand  is  altering 
a  brand.^^ 

Altering  a  brand  is  not  a  felony  unless  it  is  done 
with  intent  to  steal,  or  convert  the  animal  to  the 
use  of  the  person  so  doing  it.^^ 

In  Texas,  as  a  further  jDrotection  to  stock  own- 
ers, it  is  provided  that  if  a  butcher  kills  unmarked 
cattle  for  market,  or  purchases  and  kills  any  ani- 
mal without  a  written  transfer  from  the  vendor  he 
shall  be  fined.  Under  this  statute  it  was  held  that 
a  butcher  who  slaughtered  two  unmarked  cattle 
for  a  stranger,  and  then  bought  and  sold  them,  was 
properly  convicted.^*^  The  statute  also  provides 
for  the  reporting  of  cattle  slaughtered  to  the 
county  commissioners'  court.  A  butcher  cannot 
excuse  himself  for  failure  to  report  to  the  county 
commissioners'  court  at  each  term  the  number 
and  description  of  the  animals  slaughtered  by 
him,  by  producing  a  report  for  said  term,  sworn 
to  and  filed  at  a  later  term.^^ 

91  Belknap  v.  Belknap,  20  S.  95  State  v.  Matthews,  20  Mo. 
Dak.  482,  107  N.  W.  692.  55. 

92  State  V.  Davis,  24  N.  C.  so  Hunt  v.  State,  33  Tex. 
153.  Crim.  93,  25  S.  W.  127. 

93  Slaughter  v.  State,  7  Tex.  97  Bruns  v.  State,  33  Tex.  Cr. 
App.  123.  415,  26  S.  W.  722. 

94  Atzroth  V.  State,  10  Fla. 
207 ;  Linney  v.  State,  6  Tex.  1, 
55  Am.  Dec.  756. 


254      ESSENTIALS  OF  VETERINARY  LAW 

202.  Wrongful  Branding.  Intent  to  defraud  is 
an  essential  ingredient  of  the  offense  of  illegally 
marking  and  branding  an  animal.'-'^  The  unlaw- 
ful branding  of  a  colt,  the  ownership  of  which  is 
unknown,  is  an  indictable  offense.^^  But,  where 
the  defendant,  as  soon  as  he  discovered  that  he 
had  branded  a  colt  which  did  not  belong  to  him, 
went  to  the  owner  and  explained  the  circum- 
stances, and  bought  and  paid  for  the  colt,  he  was 
not  liable  to  indictment  for  wrongfully  branding.^ 

203.  Driving  from  Range.  The  Colorado  act 
relative  to  the  driving  away  of  cattle,  making  the 
same  larceny,  is  not  intended  to  take  it  out  of  the 
general  act,  but  to  make  it  indictable  under 
either.^  The  act  will  not  be  pronounced  felonious 
where,  in  good  faith,  the  animal  appears  to  have 
no  owner.^  To  recover  for  the  unlawful  driving 
away  of  cattle  it  is  necessary  to  prove  some  knowl- 
edge on  the  part  of  the  defendant  that  the  domes- 
tic animal  of  another  had  entered  his  herd.^  Un- 
der the  Texas  Penal  Code  an  offense  is  complete 
as  soon  as  the  cattle  are  driven  across  the  count)' 
line,  and  may  be  prosecuted  in  either  county.^ 
"Wilfully"  means  with  evil  intent.^  But  one  in 
charge  of  pasture  is  not  guilty  of  '*  wilfully  driv- 
ing cattle  not  his  own  from  their  accustomed 
range,"  for   driving   away   from   pasture   cattle 

98Fossett  V.    State,    11    Tex.  *  Chamberlain     v.     Gage,     20 

App.  40.  Iowa,  303. 

99  State  V.  Haws,  41  Tex.  161.  s  Eogers  v.  State,  9  Tex.  App- 

1  Taylor  v.  State,  35  Tex.  496.  43. 

2  Kollenberger    v.    People,    9  c  Yoakum   v.    State,    21    Tex. 
Col.  233,  11  Pae.  101.  App.  260,  17  S.  W.  254. 

3  State    V.    Swayze,    11    Ore. 
357,  3  Pac.  574. 


OWNERSHIP  OF  ANIMALS  255 

turned  in  without  permission.'^  Neither  is  one 
guilty  for  turning  horses  out,  especially  when  he 
notifies  the  owner.^ 

204.  Breeding.  There  are  many  legal  questions 
which  may  arise  relative  to  the  breeding  of  stock. 
Some  of  them  depend  upon  statutory  enactment, 
and  others  arise  through  the  application  of  the 
common  law.  Under  the  old  Kentucky  statute 
which  prohibited  the  standing  of  a  stallion  or  jack 
without  a  license,  it  was  held  that  a  person  not 
the  owner  was  properly  convicted.^  Under  a  con- 
tract that  he  might  have  mules  for  less  than  value, 
a  conviction  was  sustained  for  standing  without 
license.^*' 

205.  Service  Fees.  An  act  providing  for  pub- 
lication by  the  owner  of  a  stallion  of  terms  for 
service  does  not  prohibit  a  contract  for  different 
terms.^^  In  Maine  it  was  held  that  the  price  of 
service  of  a  stallion  which  has  not  been  registered 
may  be  recovered  when  the  animal  has  not  been 
advertised  or  held  out  for  public  use.^-  In  a  later 
case  it  was  held  that  the  owner  of  a  stallion  could 
not  recover  when  he  failed  to  file  the  pedigree  as 
required  by  statute.^  ^  There  is  no  recovery  for 
the  services  of  an  unlicensed  stallion  in  Ken- 
tucky.^^    Under  a  contract  for  the  ser\aces  of  a 

7  Wells    V.    state,    13    S.    W.  12  Briggs  v.  Hunton,  87  Me. 

889,   Tex.  145,  32  Atl.  794,  47  Am.  St.  R. 

sMahle   v.    State,    13    S.   W.  318. 

999,  Tex.  1 3  Davis   v.   Eandall,    97    Me. 

9  Commonwealth  v.  Biandou,  36,  53  Atl.  835. 

43  Ky.  2.  1*  Smith    v.    Robertson,    106 

10  Commonwealth  v.  Harris,  Ky.  472,  50  S.  W.  852,  20  Ky. 
47  Ky.  373.  Law,  1959,  45  L.  R.   A.  510. 

11  Sturgeon     v.     Merritt,     49 
Mo.  App.  160. 


256      ESSENTIALS  OF  VETERINARY  LAW 

jack  to  continue  until  July,  the  owner  of  the  jack 
to  receive  five  dollars  for  each  colt,  or  pay  at  the 
rate  of  twenty  dollars  a  month,  when  the  contract 
was  cancelled  by  agreement  in  May  it  was  held 
that  on  the  failure  of  the  plaintiff  to  elect  the 
method  of  payment  the  defendant  might  do  so.^^ 
A  contract  to  pay  fifty  dollars  for  the  colts  of  five 
mares  to  be  put  to  a  jack,  colts  or  no  colts,  was 
held  not  payable  until  the  usual  weaning  time  of 
the  colts,  unless  there  be  express  agreements  to 
the  contrary.  ^^ 

206.  Warranty  of  Sound  Heredity.  Although 
it  was  stated  in  one  case  ^^  that  there  is  no  implied 
warranty  in  the  contract  for  the  services  of  a  stal- 
lion that  the  animal  is  free  from  disease  which 
may  be  transmitted  to  oifspring,  this  general  con- 
clusion should  not  be  drawn  from  the  case  in  ques- 
tion. So  far  as  is  known  today  in  science,  the 
transmission  of  disease  directly  from  father  to 
child  is  extremely  improbable.  The  father  may, 
by  direct  contact,  communicate  a  disease  to  the 
mother;  and  similarly  the  mother  may  communi- 
cate it  to  the  child;  but  these  are  cases  of  con- 
tagion, not  of  heredity.  But  by  heredity  parents 
do  become  reproduced  as  to  structure  in  the  off- 
spring. Certain  structural  forms  predispose  the 
animal  to  definite  weaknesses.  Thus,  with  certain 
conformation  of  the  limbs  an  animal  is  predis- 
posed toward  the  development  of  a  spavin,  when- 
ever the  joint  is  put  upon  strain.    The  colt  inherits 

15  Conwell    V.    Smith,    8    Ind.  it  Briggs  v,  Hunton,   87   Me. 
o30.                                                          145,  32  Atl.  794. 

16  Brown  v.  Mattingly,  42  Ky. 
592. 


OWNERSHIP  OF  ANIMALS  257 

the  structural  form  of  joint  predisposing  to  the 
spavin,  but  does  not  inherit  the  spavin.  The  form 
of  joint  is  apparent  to  any  horseman  who  inspects 
the  animah  It  is  possible  that  the  stallion  might 
beget  many  colts  without  having  one  which  de- 
veloped a  spavin.  The  form  of  the  animal  is  one 
of  the  points  which  the  owner  of  a  mare  must  con- 
sider in  making  a  selection  of  a  sire  for  his  colts. 
On  the  other  hand,  owners  of  stock  who  knowingly 
expose  other  animals  to  a  danger  of  disease  con- 
tracted from  their  stock  are,  and  should  be,  held 
liable  for  the  damage  thus  caused.  (§  211.)  A 
horse  afflicted  with  dourine  might  transmit  the 
disease  to  the  mare,  and  from  her  it  might  infect 
the  colt,  causing  its  intrauterine  death.  A  stallion, 
being  kept  for  special  purposes,  and  under  special 
conditions,  should  not  be  classed  with  animals  in 
general.  It  seems  to  us  that  the  owner  may  rea- 
sonably be  charged  with  a  higher  degree  of  care 
than  animal  owners  generally,  to  insure  the  health- 
fulness  of  his  horse;  and  if  he  be  negligent,  he 
should  be  held  liable. 

207.  Insurance  of  Get.  By  contract  the  service 
fee  was  due  at  the  time  of  service,  with  the  priv- 
ilege of  next  season  in  case  of  failure.  Before  the 
next  season  the  horse  died,  but  the  court  held  that 
the  owner  was  entitled  to  the  fee;  ^*  but  the  con- 
trary decision  was  given  in  a  Maine  case.^^  In  a 
case  of  contract  for  service,  insured,  the  mare  was 
sold,  not  with  foal.    It  was  held  that  the  fee  was 

18  Price    V.    Pepper,    76    Ky.       575,  45  Atl.   823,  49  L.  K.   A. 
42.  693. 

19  Pinkham  v.  Libby,  93  Me. 


258      ESSENTIALS  OF  VETERINARY  LAW 

collectable.^'*  Where  the  contract  for  the  service 
of  a  jack  called  for  the  purchase  of  a  mule  colt 
for  ten  dollars ;  otherwise  the  owner  was  to  receive 
nothing,  it  was  held  that  there  was  no  insurance.^^ 

208.  Liens  for  Service.  A  lien  on  the  mare  or 
her  colt,  or  both,  may  be  established  by  statute  or 
by  contract,  for  the  payment  of  sendee  fees;  and 
a  similar  lien  is  recognized  in  the  common  law  so 
long  as  the  mare  remains  with  the  owner  of  the 
stallion.--  A's  mare  was  served  by  B's  stallion, 
whereupon  A  agreed  in  writing  to  pay  B  twenty 
dollars,  twelve  months  from  date,  if  his  mare 
proved  with  foal,  ' '  colt  holden  for  payment. ' '  It 
was  held  that  this  was  a  contract  in  the  nature  of 
a  mortgage  attached  to  the  colt  when  bom.^^ 

The  lien  for  the  service  of  a  stallion,  provided 
by  the  New  York  statute  of  1887,  exists  from  time 
of  service,  and  one  who  purchases  a  mare  after 
service,  but  before  filing  of  the  notice  of  lien,  and 
before  expiration  of  time,  takes  her  subject  to  the 
existing  lien.^'*  So,  also,  in  Tennessee  it  was  held 
that  the  lien  established  by  the  law  of  1879  is 
paramount  to  the  right  of  a  mortgage  of  a  mare 
w^hile  in  foal,  although  the  mortgage  was  regis- 
tered before  the  foal  was  dropped. ^^  A  judgment 
under  the  statutory  lien,  where  the  mare  is  sold, 
applies  not  on  the  new  owner,  but  as  a  lien  on 

20  Pitchcoek  v.  Donnahoo,  70  23  Sawyer  v.  Gerrish,  70  Me. 
Ark.  68,  66  S.  W.  145.  254,  35  Am.  Kep.  323, 

21  Aubuchon  v.  Pohlman,  1  24  Tuttle  v.  Dennis,  58  Hun, 
Mo.  App.  298.  35,  11  N.  Y.  Sup.  600. 

22  Scarfe  v.  Morgan,  4  M.  &  25  Sims  v.  Bradford,  80  Tenn. 
W.    270;    Grinnell    v.    Cook,    3  434. 

Hill    485,    38    Am.    Dee.    663; 
Jackson  v.  Holland,  31  Ga.  339. 


OWNERSHIP  OF  ANIMALS  259 

tlie  colt.-^    A  contrary  view  was  expressed  in  an 
Arkansas  case.-^ 

209.  Liability  of  Owner  of  Stallion.  The  owner 
of  a  stallion  is  liable  for  injuries  to  a  mare  while 
being  served,  due  to  the  negligence  of  such 
owner.2^    Wrong  entry  is  evidence  of  negligence.-® 

210.  Gelding  a  Stallion.  Where  a  stallion  was 
not  kept  for  breeding  purposes  as  provided  by  the 
code,  or  defendants  did  not  have  knowledge  of 
such  fact,  and  they  found  him  running  at  large 
out  of  the  enclosed  grounds  of  the  owner  in  any 
month  from  March  to  November,  they  had  the 
right  under  the  Oregon  statute  to  geld  him,  with- 
out first  taking  the  animal  to  the  owner  twice. ^'^ 
One  C.  A.  L.  Loomis  had  a  colt  running  in  the 
pasture  of  W.  H.  Loomis,  with  other  horses,  among 
which  was  a  valuable  standard  bred  stallion  colt 
belonging  to  W.  H.  Loomis.  C.  A.  L.  lived  in 
town.  He  engaged  a  veterinarian  to  geld  his  colt, 
but  said  that  his  son  would  take  the  veterinarian 
to  the  pasture  and  show  him  the  colt.  Whereupon 
the  veterinarian  found  the  boy  and  told  him  that 
he  was  to  geld  " Loomis 's  colt."  The  boy  mis- 
understood, and  assisted  in  catching  the  colt  of 
W.  H.  which  was  then  operated  upon.  The  vet- 
erinarian was  held  for  damages,  and  the  measure 
of  damages  was  to  be  the  value  of  the  colt  immedi- 

26Harby  v.  Wells,  52  S.   C.  App.  197,  27  N.  E.  432;  Scott 

156,  29  S.  E.  563.  v.  Hogan,  72  Iowa,  614,  34  N. 

27  Easter  v.   Goyne,   51   Ark.  W.  444;  Peer  v.  Ryan,  54  Mich. 
222.  224,  19  N.  W.  961. 

28  Cavender  v.  Fair,  40  Kas.  30  Tucker     v.     Constable,     16 
182,  19  Pae.  638.  Ore.  407,  19  Pac.  13. 

29  Medsker   v.   Pogue,    1   Ind. 


260      ESSENTIALS  OF  VETERINARY  LAW 

ately  after  castration  deducted  from  the  value 
immediately  before  the  operation.^^ 

211.  Liability  of  Owners  of  Animals.  Where 
the  statutes  do  not  prohibit,  the  owner  of  infected 
animals  may  pasture  them  upon  his  own  land,^^ 
but  he  must  use  due  care  to  prevent  the  spread  of 
infection.^^  If,  through  the  negligence  of  the 
owner  or  his  servants,  the  infection  spreads  to 
other  animals  the  owner  will  be  held  liable  for 
the  injury  done.^*  Infected  animals  must  not  be 
watered  at  a  public  trough.^ ^  The  bringing  of  a 
glandered  horse  into  a  public  place  is  a  common 
law  offense.^^  The  owner  of  animals  agisted  is 
liable  for  any  harm  which  may  be  caused  by 
them,^'''  though  the  agister  may  be  liable  to  the 
owners  of  other  animals  which  may  be  injured 
through  the  agency  of  the  infected  or  vicious 
stock.^^ 

The  owner  is  liable  for  injury  inflicted  by  a 
vicious  animal,  provided  that  he  had  previous 
knowledge  of  the  animal's  character,  and  had  not 
taken  due  care  to  prevent  accident.^''    The  knowl- 

31  Loomis  V,  Beese,  148  Wis.  35  Mills  v.  N.  Y.  etc,  Ey.  Co., 
647,  135  N.  W.  123.  2  Eob.  346. 

32  Fisher  v.   Clark,  41   Barb.  36  Eeg.   v.   Henson,    1   Dears, 
329.  24. 

33  Mills  V.  N.  Y.  etc.  Ey.  Co.,  37  Sheridan  v.  Bean,  8  Mete. 
2  Eob.  (N.  Y.)  326;  Clarendon  284. 

Land,  etc.  Co.  v,  McClelland,  89  38  Sehroeder  v.  Faires,  49  Mo. 

Tex.  483,  34  S.  W.  98,  35  S.  W.  470  >  Costello  v.  Van  Eyck,  86 

474.  Mich.  348,  49  N.  W.  152;  Hal- 

34Herrick  v.  Gary,  83  111.  85;  tey  v.  Markel,  44  111.  225. 
Grayson   v.   Lynch,    163    U.    S.  39  Mayer  v.  Kloepfer,  69  Atl. 
468;  Mesa  de  Mayo  L.  &  L.  S.  182;  Eobbins  v.  Magoon  &  Kim- 
Co.  V.  Hoyt,  24  Colo.  App.  279,  ball  Co.,  153  N.  W.  13. 
133  Pac.  471. 


OWNERSHIP  OF  ANIMALS  261 

edge  of  the  teamster  and  bamman  that  the  mule 
was  vicious  was  sufficient  to  charge  the  owner 
with  legally  knowing  the  fact  in  a  case  where  a 
servant  was  killed  by  the  kick  of  a  mule,  and  the 
owner  was  held  liable.^^  A  person  violating  the 
public  statutes  enacted  for  the  jDrotection  of  in- 
dividuals is  liable  for  any  injury  resulting  proxi- 
mately therefrom.^ ^  So  where  the  defendant 
allowed  his  horses  to  trespass  on  plaintiff's  land, 
and  one  of  the  plaintiff's  animals  playing  with 
them  at  a  fence  was  injured,  it  was  held  that  the 
defendant's  negligence  was  the  proximate  cause 
of  the  injury.^2  An  owner  is  liable  for  the  damage 
done  by  his  animals  when  he  drives  them  upon  the 
land  of  another.^^  Where  one  landholder  has 
waived  the  duty  of  a  neighbor  from  keeping  up 
a  fence  he  is  estopped,  in  a  claim  for  damages, 
from  denying  his  own  duty  to  keep  up  his  cattle.'*'* 
The  keeper  of  domestic  animals  is  only  bound 
to  use  reasonable  care  to  prevent  injury  being 
done  by  them.  If  the  animal  is  rightfully  in  the 
place  where  the  injury  is  done,  there  is  no  liabil- 
ity, unless  the  animal  is  vicious,  and  the  owner 
knew  it.  There  could  be  no  recovery  for  the  bite 
of  a  dog  if  the  person  be  bitten  as  result  of  his  own 
negligence,  or  misconduct.  Where  a  horse  at- 
tached to  a  wagon  jumped  onto  a  sidewalk  and 
bit  the  plaintiff,  the  plaintiff  is  not  excused  from 
proving  viciousness  simply  because  the  horse  had 

40  Bobbins  v.  Magoon  &  Kim-  ^3  Angus    Cattle    Co.    v.    Mc- 
baH  Co.,  153  N.  W.  13.  Leod,  152  N.  W.  322. 

41  Schaar      v.      Comforth  44  Milligan    v.    Wehinger,    68 
(Minn.),  151  N.  W.  275.  Pa.  St.  235. 

42  Houska      V.      Hrabe       (S. 
Dak.),  151  N.  W.  1021. 


262      ESSENTIALS  OF  VETERINARY  LAW 

no  right  to  be  on  the  sidewalk.*^  But  evidence 
that  a  dog  had  previously  bitten  a  person  is  inad- 
missible unless  the  claim  be  made  that  the  dog  is 
vicious.^^ 

Plaintiff  rented  a  bam  to  a  construction  com- 
pany for  the  accommodation  of  horses  injured,  or 
sick  on  the  job.  One  horse  so  housed  was  afflicted 
with  glanders,  and  the  authorities  ordered  the  de- 
struction of  the  bam.  Plaintiff  sued  the  company 
for  the  loss  of  the  barn;  but  it  was  held  that  in 
the  absence  of  evidence  of  previous  knowledge  by 
the  company  that  the  horse  had  that  disease,  their 
act  did  not  constitute  a  trespass,  and  the  defend- 
ant company  was  not  liable  for  the  loss  of  the 
barn.^''^ 

212.  Obligation  to  Restrain  Animals.  In  order 
to  get  a  clear  idea  of  the  relative  rights  of  land 
holders  and  the  owners  of  animals  it  is  necessary 
to  remember  two  fundamental  common  law  prin- 
ciples. It  is  the  duty  of  the  owner  of  animals, 
and  this  is  included  in  the  basis  of  his  owner- 
ship, to  restrain  his  own  animals.  That  means 
ordinarily  that  he  must  keep  them  within  his  own 
property  by  means  of  fences,  or  by  tethering;  and 
that  when  taken  upon  public  land  they  should  be 
under  such  general  control  as  ordinary  care  would 
demand. 

Secondly;  the  public  highway  is  for  the  use  of 
the  public  generally,  not  only  for  the  passage  of 

45  Dix  V.  Sommerset  Coal  Co.,  &  Co.,  72  Wash.  482,  130  Pac. 

217  Mass.  146,  104  N.  E.  433.  753,  44  L.  B.  A.   (N.  S.)   1092. 

40  Keybolte  v.  Buff  on  (Ohio),  Affirmed  on  rehearing,  72  Wash. 

105  N.  E.  192.  482,  133  Pac.  594,  44  L.  E.  A. 

47Farrar  v.  Andrew  Peterson  (N.  S.)   1094. 


OWNERSHIP  OF  ANIMALS  263 

persons  from  place  to  place,  but  also  for  such 
traffic  as  commercial  conditions  may  require.  It 
is  therefore  presumed  that  from  time  to  time  cat- 
tle of  various  kinds  and  sizes  may  be  driven  from 
place  to  place  along  the  highway.  The  road  is 
therefore  public  property,  and  to  be  used  by  in- 
dividuals for  the  common  good.  The  owner  of 
adjacent  land  has  no  special  rights  in  the  road 
which  runs  by  his  place.  The  highway  is  for  pur- 
poses of  going,  not  for  uses  purely  local.  While 
the  tethering  of  animals  along  the  side  of  the  road 
for  grazing  purposes  might  be  ignored,  still  such 
use  of  the  public  land  is  essentially  a  trespass,  and 
the  owner  would  be  held  liable  for  any  damage 
which  might  result;  such,  for  example,  as  the 
frightening  of  a  horse,  causing  a  runaway,  with 
the  possible  death  of  the  driver;  or,  the  tripping 
and  injury  of  a  horse  passing  properly  along  the 
road,  by  a  rope  fastened  on  one  side  of  the  track 
to  a  post  or  stake,  and  with  a  cow  attached  to  the 
other  end. 

In  general,  therefore,  it  is  the  duty  of  every 
owner  of  animals  to  fence  his  own  land  so  that  his 
own  animals  will  be  restrained  from  wandering; 
and  it  is  the  duty  of  every  land  owner  to  protect 
his  property  by  proper  fences  against  the  possible 
inroads  of  animals  properly  passing  in  the  pub- 
lic highway.  This  means  that  the  fences  along 
the  highway  are  to  keep  animals  either  in  or  out, 
while  those  away  from  the  highway  are  to  keep 
the  animals  in.  Cattle  or  sheep  confined  within 
a  pasture  have  abundant  time  and  opportunity 
for  finding  any  possible  weak  place  in  the  fence. 
This  means  that  a  pasture  fence  must  be  very 


264      ESSENTIALS  OF  VETERINARY  LAW 

much  stronger  than  that  dividing  two  meadows. 
On  the  other  hand,  animals  simply  driven  along 
the  highway  have  neither  time  nor  opportunity 
for  discovering  any  but  very  apparent  weaknesses 
in  the  enclosing  structure. 

These  general  rules  must  often  be  altered  to  suit 
the  locality  or  other  conditions.  Where  cattle  are 
permitted  legally  to  wander  upon  the  range,  clear- 
ly every  man  must  protect  his  own  grain  by  fences. 
By  agreement  it  is  customary  for  the  owners  of 
adjacent  property  to  unite  in  building  line  fences, 
or  to  agree  that  one  shall  keep  up  a  certain  por- 
tion, and  the  other  another  portion.  This  agree- 
ment should  include  a  statement  of  the  purposes 
for  which  it  is  erected.  A  fence  which  is  entirely 
sufiQcient  as  a  line  fence  would  be  improper  for 
the  restraint  of  animals ;  and  a  fence  w^hich  would 
be  good  for  horses  would  not  restrain  hogs,  or  if 
built  for  hogs  it  might  not  restrain  cattle  or  horses. 

A  man  is  liable  for  the  trespass  of  his  animals 
through  that  portion  of  the  line  fence  which  it  is 
his  duty  to  keep  up,  without  regard  to  the  char- 
acter of  his  neighbor's  portion.*^  But,  an  owner 
of  property  cannot  recover  for  trespass  when  the 
trespass  was  due  to  his  own  negligence,  as  in  a 
failure  to  keep  his  portion  of  the  fence  in  repair.'*^ 

**  Every  unwarrantable  entry  by  a  person  or  his 
cattle  on  the  land  of  another  is  a  trespass,  and  a 
person  is  equally^  answerable  for  the  trespass 
of  his   cattle   as   of   himself.  "^°     Where   cattle 

48Cooley,  Torts,  399.  v.  Balzer,  47  Barb.  562;   Duf- 

49  Carpenter  v.  Cook,  67  Vt.  fees  v.  Judd,  48  Iowa,  256. 

102,    30    Atl.    998;     Weide    v,  so  Am.  &  Eng.  Enc.  of  Law 

Thiel,  9   111.   App.   223;   Cowles  (2nd  Ed.),  345. 


OWNERSHIP  OF  ANIMALS  265 

simply  cross  the  land  of  another  it  is  a  trespass."^ 
It  is  a  general  rule  that  whoever  may  be  in  pos- 
session or  control  of  animals  is  liable  for  their 
trespass,  whether  his  possession  be  that  of  owner, 
hirer,  agister,  or  bailee  of  any  kind.  But  if  an 
owner  entrust  his  animals  to  an  incompetent 
agister,  he  may  be  held  liable  on  that  account.^^ 

213.  Barbed  Wire  Fences.  It  must  be  remem- 
bered in  reading  decisions  relative  to  barbed  wire 
fences  that  they  are  of  relatively  recent  use  only. 
Secondly,  there  is  a  difference  between  a  fence 
constructed  of  a  few  strands  of  the  barbed  wire, 
and  one  which  carries  with  it  a  sufficient  body  to 
attract  attention,  such  as  a  rail,  or  several  strands 
together,  at  the  top.  One  has  no  right  to  erect  a 
barbed  wire  fence  along  a  public  highway  in  such 
a  manner  as  to  make  probable  injury  to  either  per- 
sons or  animals  properly  upon  the  highway.^^  But 
the  owner  of  the  fence  may  not  be  held  liable  for 
injury  to  animals  illegally  roaming  at  large,^^  nor 
where  the  injury  was  due  to  the  contributory  neg- 
ligence of  the  owner  of  the  animal,  as  where  a  man 
exercising  a  horse  gave  him  so  much  rope  that  the 
animal  ran  against  the  barbed  wire  fence.^^  In  a 
Canadian  case  it  was  even  held  that  the  owner  of 
the  fence,  which  had  no  rail  to  give  warning,  was 

31  Sturtevant    v.    Merrill,    33  Sisk   v.   Crump,    112   Ind.   504; 

Me.  62.  Foster  v.  Swope,  41  Mo.  App. 

52  Ward    V.    Brown,    64    111.  137. 

307 ;  R'osswell  v.  Cottom,  31  Pa.  b*  Galveston  Land  &  Imp.  Co. 

St.  525;  Wales  v.  Ford,  8  N.  J.  v.    Pracker,    3    Tex.    Civ.    App. 

L.  267.  261,  22  S.  W.  830. 

•^3  Elgin  Road  Trustees  v.  In-  ^s  Hoag  v.  Orange  Mt.  Land 

nes,   14  Eettie    (Sc.   Ct.   Sess.)  Co.,  12  N,  .T.  L.  Jour.  243. 
48;  Hurd  v.  Lacy,  93  Ala.  427; 


266      ESSENTIALS  OF  VETERINARY  LAW 

not  liable  for  the  death  of  a  colt  playing  by  the 
side  of  its  mother  which  was  being  led  along  the 
road,  though  the  death  came  from  the  cuts  in- 
flicted by  the  barbs.^®  Where  a  railroad  company 
erected  a  barbed  wire  fence  between  its  property 
and  adjacent  land,  it  was  held  liable  for  the  death 
of  sheep  occasioned  by  the  fence.^''' 

214.  Frightening  Animals.  The  question  as  to 
the  right  of  action  against  one  for  frightening- 
animals  is  one  which  has  resulted  in  an  immense 
mass  of  litigation.  It  seems  to  us  that  it  is  one 
which  must  be  settled  largely  by  the  special  case. 
An  automobile  may  properly  be  upon  the  public 
road,  and  a  horse  may  be  frightened  thereby,  but 
if  the  horse  chances  to  be  unusually  nervous  the 
autoist  would  not  be  liable.  On  the  other  hand, 
an  autoist  running  at  a  high  rate  of  speed  by  a 
horse  should  be  held  strictly  liable  for  any  dam- 
age which  may  result.  A  piece  of  paper  acci- 
dentally blown  out  of  a  vehicle,  thus  frightening 
a  passing  horse,  might  not  imply  liability,  while 
if  thrown  carelessly  before  a  horse  which  is  fright- 
ened thereby,  it  would  probably  be  considered  as 
a  creation  of  liability. 

215.  Liability  for  Injuries  on  the  Public  High- 
way. A  distinction  must  be  made  between  streets 
and  bridges  which  are  under  the  control  of  munic- 
ipalities, and  those  which  are  simply  public  prop- 
erty. Where  an  animal  passing  along  a  public 
highway  is  injured  as  a  result  of  some  defect  in 
the  road,  or  obstruction  there  placed,  the  person 

56Hillyard    v.    Grand    Trunk       E.  E.  &  N.  Co.,  35  Ore.  79,  .oG 
Ry.  Co.,  8  Ont.  583.  Pae.  1011. 

"  Siglin   V,  Coos  Bay,  E.   & 


OWNERSHIP  OF  ANIMALS  267 

responsible  for  the  obstruction  or  defect  may  be 
held  liable  individually,  whether  he  hold  a  public 
office  or  not;  but  the  state  cannot  be  sued,  and 
there  is  no  liability  on  the  part  of  the  county  or 
township  which  is  unincoiporated.^^  In  a  city  the 
corporation  may  be  held  liable,  though  not  neces- 
sarily so.^^ 

58  Public  Health,  357. 

59  Public  Health.  858. 


CHAPTER  X. 

BAILMENT. 

§  220.  Definition.  §  231.  Actions  for  Liability  of 
§  221.  Bailment  a  Contract.  Bailee. 

§  222.  BaUer     May      Not      Be  §  232.  Conversion. 

Owner.  §  233.  Liens. 

§  223.  Bailment  Implies  Knowl-  §  -34-  General  Liens. 

edge  of  the  Bailee.  §  -^^-  Agister's  Lien. 

§  224.  Care  Kequired  of  Bailee.       §  f''  ^^^^^.^  ^  ?^^^°-    , 
^     .  ^  §  237.  Priority  of  Eight. 

§  225.  Ordinary  Care.  |  ,3g_  ^.^^^  ^^  g^^^^ 

§  226.  Duty  of  Bailor.  g  ^39.  Estrays  and  Trespassing 
§  227.  Liability  of  Bailee.  Animals. 

§  228.  Warranty  of  Bailor.  §  040.  Waiver  of  Lien. 

§  229.  Bailment,  Sale,  or  Gift.  §  24I.  Illegal  Sale  by  Bailee. 

§  230.  Bailee 's    Eight    to     Use  §  242.  Lien  Once  Lost  Can  Not 
Property  Bailed.  Be  Eevived. 

220.  Definition.  The  term  "bailment"  is  held 
to  include  that  large  variety  of  cases  in  which 
the  personal  property  of  one  person  is  left  tempo- 
rarily in  the  charge  of  another.  The  law  of  bail- 
ment is  therefore  involved  in  a  large  proportion 
of  the  cases  arising  in  disputes  over  the  handling 
and  care  of  animals.  The  livery  man  is  a  bailor 
when  he  rents  out  one  of  his  teams;  and  he  is  a 
bailee  when  he  takes  the  horse  of  another  to  feed. 
The  veterinarian  is  a  bailee  when  he  assumes  the 
care  of  an  animal  sick  either  on  the  owner 's  prem- 
ises, or  in  the  veterinary  hospital.  The  owner  of 
a  pasture  is  a  bailee  when  he  takes  the  stock  of  a 
neighbor  to  agist,  and  the  blacksmith  is  a  bailee 
when  he  shoes  an  animal.    The  owner  of  a  stallion 

268 


BAILMENT  269 

is  a  bailee  of  mares  brought  to  his  stallion,  so  long 
as  they  are  in  his  care.  The  butcher  is  the  bailee 
of  cattle  which  he  slaughters  for  another,  and  the 
man  who  distrains  cattle  found  trespassing  upon 
his  property,  or  who  impounds  stray  animals,  is 
a  bailee.     (See  §  79.) 

221.  Bailment  a  Contract.  Every  act  of  bail- 
ment is  under  a  contract,  implied  or  expressed.  If 
the  exact  terms  are  not  fixed  beforehand  they  must 
be  determined  by  common  or  statutory  law.  There 
is  always  this  one  point  found  in  bailment,  namely, 
that  the  bailee  agrees  to  return  the  article  bailed 
upon  the  proper  demand  of  the  bailor.  In  the  bail- 
ment of  animals  it  is  further  agreed  that  the  bailee 
must  feed  and  care  for  the  stock  surrendered  to 
his  care,  and  that  he  shall  use  due  diligence  to  see 
that  they  are  not  injured  in  any  way.  Clearly,  if 
the  stock  do  not  need  feeding  while  he  has  them 
in  charge,  he  cannot  be  expected  to  do  so.  The 
man  hiring  a  livery  team  for  a  couple  of  hours 
would  not  be  expected  to  feed  them  in  that  time, 
but  if  he  kept  them  for  the  entire  day  he  would 
be  negligent  were  he  to  neglect  to  give  them  food 
and  water. 

222.  Bailor  May  Not  Be  Owner.  The  bailor 
need  not,  necessarily,  be  the  owner  of  the  thing 
bailed.  He  may  himself  be  a  bailee  to  whom  the 
owner  has  entrusted  the  animal,  as  a  servant  may 
be  sent  with  a  horse  to  the  smithy;  or  the  bailor 
may  have  stolen  the  animal.  In  the  case  of  a  serv- 
ant, acting  for  his  employer,  the  employer  may  be 
recognized  as  the  real  bailor.  It  is  the  duty  of  the 
bailee  to  deliver  the  animals  bailed  to  the  bailor, 
and  if  he  should  deliver  to  any  one  else  he  may  be 


270      ESSENTIALS  OF  VETERINARY  LAW 

held  liable  for  whatever  may  happen  until  the 
animals  are  recovered. 

223.  Bailment  Implies  Knowledge  of  the  Bailee. 
*  *  An  example  used  by  many  of  the  authors  on  this 
subject  is  where  one,  by  mistake,  puts  his  pur- 
chased articles  into  another's  wagon  in  the  street, 
and  the  owner,  without  any  knowledge  of  their 
presence,  drives  away  with  them.  So  long  as  he 
is  ignorant  of  having  them  in  his  possession  he 
is  under  no  obligation  to  care  for  them;  he  may 
lose  them  by  the  grossest  carelessness  upon  his 
part,  and  he  is  not  liable  because  he  is  not  in  any 
sense  a  bailee;  but  the  moment  he  discovers  the 
parcels,  and  has  knowledge  of  the  fact  that  he  has 
them  in  his  possession,  from  that  moment  he  be- 
comes a  bailee,  and  is  legally  bound  to  care  for 
them,  and  if  lost,  under  certain  circumstances 
would  be  liable  to  the  owner. "  ^  So  the  owner  of 
property  upon  which  animals  have  wandered  is 
not  a  bailee  so  long  as  he  is  ignorant  of  their  pres- 
ence ;  but  if,  after  he  knows  of  their  presence,  and 
while  they  are  still  upon  his  place,  they  should  be 
injured  through  any  act,  or  negligence  on  his  part, 
he  may  be  held  liable  to  the  owner  for  injury 
suffered. 

224.  Care  Required  of  Bailee.  The  degree  of 
care  demanded  of  the  bailee  in  the  discharge  of 
his  obligation  varies  greatly  according  to  circum- 
stances. The  decision  of  the  question  depends, 
first,  upon  the  terms  of  the  bailment.  Manifestly, 
when  the  animals  bailed  are  being  kept  free  for 
the  interest  of  the  bailor  the  degree  of  care  which 

1  Van    Zile,     Bailments    and 
Carriers,  18. 


BAILMENT  271 

should  be  demanded  would  be  less  than  where  the 
animals  were  loaned  for  the  use  of  the  bailee,  free 
of  charge.  Midway  between  these  would  be  the 
case  in  which  the  animals  are  hired  out  for  the 
mutual  benefit  of  both;  the  bailee  gets  the  use  of 
the  animals,  and  the  bailor  receives  pay  for  their 
service.  Where  an  animal  is  loaned  free  for  the  use 
of  the  bailee,  the  highest  degree  of  care  and  dili- 
gence to  insure  the  safe  return  will  be  demanded 
of  the  bailee  in  law,  and  if  injury  results  because 
of  his  slight  negligence  he  will  be  held  strictly 
to  account  therefor.^  But  when  as  an  accommo- 
dation to  the  owner  a  man  assumes  the  care  of  his 
stock,  and  expects  nothing  in  return  for  his  labor, 
and  perhaps  pasture,  the  law  will  presume  only 
the  exercise  of  a  slight  degree  of  diligence,  and 
will  hold  him  for  damages  only  when  they  are  the 
result  of  his  gross  carelessness  or  negligence.^ 
When  the  bailee  either  hires  the  use  of  the  ani- 
mals, or  takes  the  animals  to  care  for,  the  court 
will  only  expect  him  to  use  such  ordinary  care  as 
he  would  were  they  his  own;  and  will  hold  him 
responsible  only  for  ordinary  negligence. 

A  man  driving  along  an  open  country  road 
might  permit  the  horse  to  take  his  own  way  much 
of  the  time  without  being  negligent ;  but  the  same 
horse  must  be  driven  with  a  guiding  rein  through 
a  crowded  city  street.  A  sound  horse  may  be 
driven  with  less  guidance  than  one  which  is  known 

2  Howard  v.  Babcock,  21  111.  v.  Harlow,  31  Ga.  348;  Bass  v. 
259;  Robertson  v.  Brown,  1  U.  Cantor,  123  Ind.  444,  24  N.  E. 
C.  Q.  B.  345.  147;    Wolseheid   v.    Thome,    76 

3  Line  v.  Mills,  12  Ind.  App.  Mich.  265,  43  N.  W.  12. 
100,  39   N.   E.   870;    Thompson 


272      ESSENTIALS  OF  VETERINARY  LAW 

to  be  blind,  or  lame,  or  vicious,  without  lessen- 
ing the  degree  of  diligence. 

225.  Ordinary  Care.  Ordinary  care  means  that 
amount  of  diligence  which  one  would  exercise 
with  regard  to  his  own  like  property.  There  can 
be  no  hard  and  fast  rule  in  this  regard.  For  ex- 
ample, horses  accustomed  to  be  kept  in  barns,  if 
they  chanced  to  be  in  a  pasture  when  a  storm 
came  up,  with  sleet  and  snow,  would  suffer  if  left 
exposed.  Ordinary  care  would  mean  the  bringing 
of  the  horses  to  shelter;  but  ordinary  care  for  a 
lot  of  wild  horses,  accustomed  to  exposure  during 
winter,  in  the  same  storm  would  mean  letting  them 
alone. 

A  milch  cow  would  be  injured  were  she  not 
milked  at  the  usual  time,  and  ordinary  care  re- 
quires that  she  be  milked  for  her  own  safety. 
Sheep  permitted  to  wear  their  winter  coat  of  wool 
through  the  summer  months  would  suffer,  and 
ordinary  care  demands  that  such  sheep  be 
sheared;  but  if  the  sheep  are  being  boarded,  or 
agisted,  in  the  absence  of  special  agreement  the 
wool  would  be  the  property  of  the  owner  of  the 
sheep.  The  care  of  the  sheep  includes  also  the  care 
of  the  wool,  and  if  it  cannot  be  preserved  without 
loss  to  the  owner,  ordinary  care  would  mean  that 
the  wool  must  be  sold,  and  in  the  place  of  handing 
over  the  wool  itself  the  agister  would  pass  over 
the  money  received. 

226.  Duty  of  Bailor.  ''It  is  the  duty  of  the 
bailor  to  exercise  good  faith  toward  the  bailee  by 
giving  him  notice  of  all  the  faults  of  the  thing 
bailed,  within  his  knowledge,  that  might  result  in 
exposing  the  bailee  to  danger,  and  if  he  fails  to  do 


BAILMENT  273 

so,  and  by  reason  of  it  the  bailee  is  injured,  the 
bailor  will  be  liable.  As,  for  example,  if  the  bailor 
should  loan  a  vicious  horse,  it  is  his  duty  to  notify 
the  bailee  of  the  fact,  and  if  by  reason  of  the 
bailor's  failing  to  give  such  notice  the  bailee 
should  be  injured,  he  may  recover  damages  of 
the  bailor."  "* 

If  a  livery  man  hires  out  a  horse  accustomed  to 
run  away,  and  fails  to  notify  the  person  hiring 
it,  he  will  be  liable  for  the  full  amount  of  damages 
which  may  result  from  such  an  act.  But  if,  having 
been  warned  of  this  habit,  the  bailee  fails  to  exer- 
cise care  and  diligence  proportional  to  the  warn- 
ing given,  and  the  horse  runs  away,  the  bailee  may 
be  held  liable  for  all  damage  sustained,  not  only 
by  the  owner  of  the  horse,  but  also  by  other  per- 
sons. 

227.  Liability  of  Bailee.  A  man  would  not  use 
his  own  horse  if  it  were  sick  or  lame.  When  a 
horse  becomes  sick  or  lame  it  is  therefore  the  duty 
of  the  bailee  to  abstain  from  using  it,  and  if  he 
continues  he  is  liable  for  any  injury  resulting.^ 

The  bailee  is  not  liable  for  injuries  not  caused 
by  his  abuse  or  negligence.^  If  a  hired  horse  is 
taken  ill  and  the  bailee  calls  a  farrier  he  is  not 
liable  for  the  farrier's  lack  of  skill,  but  he  may  be 
held  liable  for  gross  negligence  if  he  be  not  care- 
ful in  the  selection  of  a  competent  veterinarian.'^ 

Every  contract  of  letting  impliedly  warrants 

*  Van    Zile,     Bailments    and  «  Thompson  v.  Harlow,  31  Ga. 

Carriers,  22.  348;     Perham     v.     Coney,     117 

5  Hawkins  v.  Haynes,  71  Ga.  Mass.  102. 
40 ;    Leach   v.   French,    69    Me.  ^  Dean   v.    Keate,    3    Campb. 

389,  31  Am,  Rep.  296;  Edwards  4. 
V.  Carr,  13  Gray  (Mass.)  234. 


274      ESSENTIALS  OF  VETERINARY  LAW 

that  the  animals  are  reasonably  fit  and  suitable 
for  the  work  which  they  are  hired  to  perfonn,  if 
the  same  is  known  to  the  bailor.^  It  is  thus  his 
duty  to  notify  of  vicious  propensities,  and  he  is 
liable  for  the  vicious  act  of  his  horse  if  he  failed  to 
give  notice.^  But  when  the  bailor  warned  the 
bailee  of  the  horse's  habit  of  kicking,  and  the 
bailee  did  not  use  a  kicking  strap,  it  was  held  that 
the  bailor  was  not  liable  for  injury  sustained. ^° 

A  distinction  must  be  recognized  between  negli- 
gence and  fraud  or  deceit.  The  bailor  makes  no 
implied  warranty  that  his  animals  are  fit  to  do 
more  than  that  for  which  they  are  hired.  If  a  man 
should  engage  a  span  of  horses  to  drive  for  a  fore- 
noon, and  should  take  a  span  of  roadsters  and 
hitch  them  to  a  plow  for  the  breaking  of  land,  a 
purpose  for  which  they  were  not  fitted,  and  were 
not  hired,  the  bailee  would  be  held  strictly  liable 
for  the  full  amount  of  damage  sustained  by  the 
team,  for  he  practiced  fraud  and  deception  in  the 
transaction.^^  No  superficial  technicality  of  words 
would  relieve  him.  Were  he  to  plead  that  he  en- 
gaged the  horses  for  driving,  but  that  he  did  not 
say  where  he  was  going  to  drive  them,  or  hitched 
to  what  kind  of  a  rig,  and  that  therefore  he  had 
not  used  them  for  a  purpose  otherwise  than  they 
had  been  hired,  such  a  plea  would  doubtless  be 
held  only  to  indicate  the  greater  degree  of  fraud 

8  Bass    V.    Cantor,    123    Ind.  Kimball    Co.,    153    N.    W.    13; 

444,    24    N.    E.    147 ;    Leach   v.  Kissan  v.  Jones,  56  Hun,  432. 
French,   69   Me.   389;    Harring-  lo  Ohlweiler   v.   Lohmann,    82 

ton  V.  Snyder,  3  Barb.  380.  Wis.  198,  52  N.  W.  172. 

»  Campbell  v.  Page,  67  Barb.  "Lockwood  v.   Bull,   1   Cow. 

113;     Mayer    v.    Kloepfer,    69  322. 
Atl.  182;  Bobbins  v.  Magoon  & 


BAILMENT  275 

and  deceit.  Also,  if  a  horse  be  hired  to  drive 
to  a  certain  place,  or  for  a  certain  time,^^  and  the 
bailee  should  drive  much  further,  or  use  it  much 
longer,  and  in  consequence  the  horse  be  injured, 
it  would  be  held  that  in  addition  to  negligence 
in  the  care  of  the  animal  the  bailee  had  used  fraud, 
and  he  would  be  held  strictly  liable  for  the  full 
amount  of  damage  resulting  from  his  overuse.^ ^ 

It  is  the  duty  of  the  owner  of  an  animal  hired 
out  and  returned  in  a  sick  or  injured  condition, 
or  in  a  condition  which  results  in  sickness,  to  give 
such  animal  proper  care.^*  If  the  owner  simply 
lets  his  animal  die  he  cannot  recover  for  the  loss 
of  the  animal  from  the  bailee  through  whose  neg- 
ligence or  misfeasance  the  illness  or  injury  oc- 
curred. The  owner  can  recover  for  the  injury, 
and  for  the  necessary  expense  of  treatment,  but 
he  cannot  recover  for  the  increased  loss  due  to 
his  own  negligence.  He  should  employ  a  veterina- 
rian that  the  loss  be  as  small  as  possible. 

228.  Warranty  of  Bailor.  Impliedly  the  bailor 
warrants  that  the  animal  let  is  fit  and  suitable  for 
the  purpose  for  which  it  is  let.  This  warranty 
is  not  absolute,  but  it  implies  that  with  ordinary 
diligence  the  owner  could  discover  no  reason  why 
it  might  be  not  suitable.  To  hold  the  bailor  liable 
for  damage  resulting  from  the  letting  out  of  a 
vicious  horse  it  was  held  in  a  comparatively  recent 
case  in  Massachusetts  that  it  is  necessary  to  show 
that  the  owner  knew  that  the  horse  was  vicious, 

12  Coggs    V.  Bernard,    2    Ld.  571;  Stewart  v.  Davis,  31  Ark. 
Eaym.  909.  518. 

13  Homer  v.  Thwing,  3  Pick.  i4  Graves  v.  Moses,  13  Minn. 
492;    Malaney  v.   Taft,   60  Vt.  335. 


276      ESSENTIALS  OF  VETERINARY  LAW 

or  that  he  might  reasonably  have  known  that 
fact.i' 

229.  Bailment,  Sale,  or  Gift.  It  is  sometimes  a 
question  whether  the  transaction  may  be  a  bail- 
ment, sale,  or  gift.  The  distinction  is  this:  In  a 
bailment  the  ownership  remains  in  the  possession 
of  the  original  owner,  to  whom  the  bailee  must 
return  the  article  bailed.  The  bailor  may  sell  or 
mortgage  his  property,  subject  to  certain  possible 
liens  held  by  the  bailee.  In  a  sale  there  is  an 
exchange  of  ownership  for  a  compensation.  In  the 
gift  there  is  an  exchange  of  ownership  without 
compensation.  In  bailment  the  owner  cannot  give 
possession  to  a  possible  vendee  until  the  termina- 
tion of  the  bailment.  If  the  bailment  is  indefinite 
as  to  time  it  may  be  terminated  at  the  will  of  either 
bailor  or  bailee ;  ^^  but  if  it  be  for  a  given  tenn  it 
cannot  be  terminated  before  the  time  set,  except 
by  the  agreement  of  both  bailor  and  bailee.  Thus, 
where  sheep  were  let  for  one  year  the  court  held 
that  there  was  essentially  a  change  of  ownership, 
and  that  the  payment  for  the  sheep  received  was 
to  be  made  in  a  like  number  of  sheep  of  the  same 
kind  one  year  from  the  date  they  were  received.^' 

Though  the  distinction  between  bailment,  sale 
and  gift  seems  simjole  in  the  abstract,  in  practical 
application  it  may  not  be  so  plain.  Suppose  a  poor 
man  should  lose  his  cow,  and  his  rich  neighbor 
should  tell  him:  ''You  may  take  one  of  my  cows," 

15  Copeland    v.    Draper,    157  it  Bellows   v.   Denison,   9   N. 

Mass.  588,  19  L.  E.  A.  283.  H.   293;   WUson  v.  Finney,  13 

10  Learned    Letcher    Lumber       Johns.  358. 
Co.  V.  Fowler,  109  Ala.  169,  19 
So.  396. 


BAILMENT  277 

would  it  be  a  gift,  or  a  loan?  The  question  could 
only  be  answered  by  coordinating  facts.  The  let- 
ting of  a  flock  of  sheep  for  a  year  is  a  virtual  sale. 
A  yoke  of  oxen  hired  for  a  month  is  a  bailment; 
the  same  oxen  must  be  returned. 

There  are  so  many  possible  questions  which  may 
arise  in  the  bailment  of  animals  that  for  mutual 
protection  the  contract  should  be  in  writing,  in 
the  form  of  a  contract,  if  the  bailment  is  to  con- 
tinue for  some  time.  The  contractual  form  is 
always  to  be  preferred,  but  for  short  terms  a  re- 
ceipt, stating  terms  as  understood,  would  be  suffi- 
cient.    (See  §  80.) 

230.  Bailee's  Right  to  Use  Property  Bailed. 
The  right  of  the  bailee  to  make  use  of  the  prop- 
erty bailed  must  depend  upon  the  exact  terms  of 
the  agreement.  Where  the  animals  are  hired  out 
to  the  bailee,  or  where  he  is  keeping  them  as  an 
accommodation  for  the  bailor,  it  is  understood,  in 
the  absence  of  any  special  agreement  to  the  con- 
trary, that  the  bailee  may  use  them  as  if  they  were 
his  own.^^  When  the  bailee  is  being  paid  for  the 
care  of  the  animals,  in  the  absence  of  a  supple- 
mentary agreement,  it  is  understood  that  he  is 
expected  to  give  them  ordinary  care,  and  that  he 
will  not  use  them.  Should  he  make  use  of  them 
he  may  be  held  liable  for  damages.^ '^  Such  a  rul- 
ing would  probably  not  be  made  for  the  use  of  the 
milk  of  a  milch  cow,  for  proper  care  would  require 
the  milking,  and  the  milk  is  not  of  a  nature  fit  for 
preservation.    However,  if  the  contract  calls  for 

18  Van  Zile,  Op.  eit.  45. 

19  Collins  V.   Bennett,   46   N. 
Y.  490;  Van  Zile,  Op.  cit.  46. 


278      ESSENTIALS  OF  VETERINARY  LAW 

the  delivery  of  the  milk  to  the  owner,  clearly  all 
of  the  milk  should  be  so  delivered.  A  horse  kept 
in  a  stable  must  be  exercised  to  preser\^e  its  health, 
and  if  it  be  driven  no  more  than  is  necessary  for 
that  purpose,  even  though  the  bailee  drove  it  for 
use  it  would  not  ordinarily  be  considered  a  viola- 
tion of  his  duty  as  bailee;  but  if  the  contract  ex- 
pressly forbade  such  driving  he  would  be  held 
liable.'*^ 

231.  Actions  for  Liability  of  Bailee.  Where 
the  petition  in  action  sought  to  recover  for  the  loss 
of  certain  cattle  put  to  pasture,  through  the  care- 
lessness and  negligence  of  the  agister,  the  burden 
of  proof  was  held  to  be  on  the  plaintiff. ^^  The 
hirer  of  a  horse,  to  avoid  liability  for  injury,  was 
not  bound,  to  show  how  the  injury  was  received; 
it  being  sufficient  to  show  that  it  was  mysteriously 
inflicted  in  the  night,  whereupon  the  owner  was 
bound  to  show  the  hirer's  negligence.^^  Where  a 
horse  is  let  on  contract  providing  that  on  a  day's 
notice  the  horse  shall  be  returned  in  same  condi- 
tion as  received,  compliance  is  excused  by  the 
death  of  the  horse  without  fault  of  the  bailee.-^ 

Under  a  contract  to  pay  the  value  of  a  mare  if 
not  returned  in  good  condition,  the  acceptance  of 
the  mare  does  not  constitute  a  rescission  of  con- 
tract, or  waiver  of  right  to  recover  her  value.- ^ 

20  Collins  V,  Bennett,  46  N.  23  Am.  Preservers '  Co,  v. 
Y.  490.                                                   Drescher,  4  Misc.   (N.  Y.)   482, 

21  McCarthy  v.  Wolfe,  40  Mo.       24  N.  Y.  Sup.  361. 

520;   Rayl  v.  Kreilich,  74  Mo.  24  Austin  v.  Miller,  74  N.  C. 

App.    246;    Casey   v.    Donovan,       274. 
65  Mo.  App.  521. 

22Sanford    v.    Kimball,    106 
Me.  355,  76  Atl.  890. 


BAILMENT  279 

Where  tlie  contract  called  for  the  return  of  sheep 
in  good  marketable  condition,  and  it  was  shown 
that  the  sheep  were  diseased  when  bailed,  it  was 
held  that  the  contract  be  understood  to  mean  in  as 
good  marketable  condition  as  could  reasonably  be 
expected.^^  Where  the  sheep  were  to  be  returned 
in  the  same  condition  as  they  were  received,  and 
they  were  returned  pregnant,  and  began  dropping 
their  lambs  in  winter,  and  in  consequence  some 
died,  it  was  held  to  be  no  breach  of  contract  when 
it  was  shown  that  they  were  delivered  to  the  bailee 
pregnant,  and  dropped  lambs  in  January  and 
February.  2*^ 

In  a  contract  to  pay  a  dollar  a  day  for  the  use 
of  oxen,  and  feed  and  take  care  of  them,  it  was 
held  that  payment  must  be  made  for  the  days 
worked,  and  that  the  feed  and  care  must  be  given 
for  the  entire  time  imtil  the  oxen  were  retumed.^'^ 

232.  Conversion.  It  is  an  important  and  essen- 
tial element  in  a  contract  of  bailment  that  the 
bailee  shall  return  the  article  bailed  to  the  bailor 
upon  proper  demand.  Any  act  of  the  bailee  which 
shall  interfere  with  such  return  is  conversion.  The 
bailee  may  wrongfully  sell  the  animal;  he  may 
wilfully  or  negligently  kill  it  or  he  may  appropri- 
ate it  to  his  own  use  unlawfully.  Upon  any  of 
these  events  the  bailor  may  terminate  the  bail- 
ment and  make  demands  for  the  return.  If  the 
animal  be  sold  he  may  recover  possession,  by 
replevin  or  otherwise,  and  let  the  innocent  pur- 
chaser hunt  for  his  satisfaction  from  the  bailee. 

25  Peck  V.  Brewer,  48  111.  54.  -'>  Learned     Letcher    Lumber 

20  Williams     v.     Frazier,     41      Co.  v.  Fowler,  109  Ala.  169,  19 
How.  Pr.   (N.  y.)  428.  So.  396. 


280      ESSENTIALS  OF  VETERINARY  LAW 

A  bailee,  as  bailee,  could  give  no  lawful  title.-® 
Or  the  bailor  may  recover  a  fair  market  value  for 
the  articles  converted,  or  if  they  be  sold  for  a 
greater  price  he  may  recover  all  that  has  been 
received.  It  has  been  held,  relative  to  horses  that 
have  been  hired  out  for  driving,  that  a  willful  and 
intentional  deviation  from  the  ordinary  line  of 
travel  is  an  act  of  conversion,^^  entitling  the  owner 
to  recover  therefor  in  addition  to  the  ordinary 
hire.  On  the  other  hand,  it  has  been  held  that  if 
an  animal  did  not  receive  his  injury  while  being 
driven  outside  the  limits  of  the  hiring,  the  bailee 
could  not  be  held  for  conversion.^^ 

233.  Liens.  The  keeping  of  many  articles  re- 
quires no  expense,  and  but  little  care.  The  keep- 
ing of  animals  implies  constant  care  and  expense. 
It  is  therefore  usual  that  the  contract  provide  for 
compensation  for  the  care  and  feeding  of  the  ani- 
mals. The  compensation  may  be  in  the  nature  of 
use,  as  where  the  oxen  are  loaned  to  a  neighbor; 
or  where  sheep  are  left  with  a  bailee  for  their 
board,  under  the  understanding  that  the  agister 
is  to  have  the  increase  and  the  wool.  When  it  is 
provided  that  the  bailor  is  to  pay  the  bailee  for 
the  keep,  it  is  frequently  provided  either  by  spe- 
cial contract  or  by  statute  that  the  bailee  shall 
have  a  lien  upon  the  stock  for  the  payment  due. 
Such  a  right  has  been  sometimes  recognized  in  the 
common  law,  but  present  usage  is  not  favorable  to 

28  Lovejoy  v.  Jones,  30  N.  H.  29  Spooner  v.  Manchester,  133 

164;   Calhoon  v.  Thompson,  56  Mass.  270. 

Ala.  166 ;  Medlin  v.  Wilkinson,  so  Farkas   v.   Powell,    86   Ga. 

81  Ala.  147;  Johnson  v.  Miller,  800;   12  L.  E.  A.   397;   Rankin 

16  Ohio,  431;   Dunham  v.  Lee,  v.  Shepherdson,  89  111.  445. 
24  Vt.  432. 


B'AIL:\IENT  281 

such  construction.  In  addition,  when  the  stock 
has  been  left  for  some  special  service,  as  that  of  a 
trainer,  or  of  a  veterinarian,  a  lien  is  frequently- 
provided  for  the  payment  of  those  services. 
(§§  79-83.) 

A  lien  may  be  created  by  contract.^^  A  con- 
tract to  pay  before  moving  stock  creates  a  lien.^- 
Where  the  contract  for  the  keep  of  stock  creates  a 
lien,  it  operates  on  all;  not  upon  a  number  pro- 
portional to  the  amount  due.^^  A  contracted  to 
care  for  the  cattle  of  B  for  five  months;  the  con- 
tract was  canceled  in  two  months  by  B,  who 
claimed  that  the  cattle  were  not  well  kept.  It 
was  held  by  the  court  that  A  had  a  lien  only  for 
the  payment  of  the  care  for  the  two  montlis.^^ 

234.  General  Liens.  A  specific  lien  is  recog- 
nized in  cases  where  the  bailee  has  expended  labor 
and  material  for  the  betterment  of  the  thing 
bailed.  The  tailor  has  a  lien  on  the  clothes  which 
he  made  from  the  cloth  left  by  the  bailor,  etc.  The 
lien  of  veterinarians,  agisters,  blacksmiths,  and 
livery  keepers  has  frequently  been  recognized 
either  in  common  law  or  statutes.  In  each  of  these 
cases  the  lien  attaches  to  the  special  item,  or  items 
in  the  possession  of  the  bailee,  for  that  specific 
account.  General  liens,  that  is  the  holding  of  any 
property  for  the  payment  of  an  account  not  related 
to  the  article  directly,  are  not  favored  in  law,  and 
when  found  they  are  veiy  strictly  interpreted  by 

31  Cummings  v.  Harris,  3  Vt.  S.  W.  1023 ;   Yearsley  v.  Gray, 

244,  23  Am.  Dec.  206.  140  Pa.  St.  238,  21  Atl.  318; 

82  McCoy  V.  Hock,  37  la.  436.  Hensel  v.  Noble,  95  Pa.  St.  345. 

33  Parse  Live  Stock  Com.  Co.  34  Powers    v.    Potts,    58    Mo. 

V.  Adams,  2  Ind.  Ter.  119,  48  App.  1. 


282      ESSENTIALS  OF  VETERINARY  LAW 

the  courts.^^  They  may  be  established  by  special 
contract,  and  sometimes  possibly  by  statute,  as 
where  the  innkeeper  is  given  a  lien  on  the  baggage 
of  his  gnest.  But  unless  clearly  authorized  the 
bailee  can  have  no  lien  except  upon  articles  direct- 
ly pertaining  to  the  one  matter.  Thus,  a  veterina- 
rian could  have  a  lien  upon  the  wagon  of  the  bailor 
for  payment  of  his  veterinary  bill  only  by  special 
contract.  A  veterinarian  could  hold  the  horse  in 
his  possession  for  his  bill  in  that  case,  and  proba- 
bly for  his  professional  bill  as  a  whole,  but  not 
for  .the  use  of  his  pasture  by  the  sheep  of  the  same 
owner,  for  that  would  be  a  separate  account.  ' '  It 
is  equally  clear,  on  principle  as  well  as  authority, 
that  where  there  is  an  entire  contract  for  making 
or  repairing  several  articles  for  a  gross  sum,  the 
tradesman  has  a  lien  on  any  one  or  more  of  the 
articles  in  his  possession,  not  only  for  their  pro- 
portionate part  of  the  sum  agreed  upon  for  repair- 
ing the  whole,  but  for  such  amount  as  he  may  be 
entitled  to  for  labor  bestowed  upon  all  the  articles 
embraced  in  the  contract.  "^^  This  same  rule 
would  apply,  in  the  absence  of  specific  contract, 
for  the  payment  of  *'a  reasonable  amount"  for 
services;  and  it  should  be  interpreted  to  include 
a  general  account  in  the  same  line,  as  for  the  vet- 
erinarian's services.  On  the  other  hand,  where 
separate  contracts  are  made,  as  for  the  pasturage 
of  a  certain  number  of  cattle  at  a  given  rate,  and 
another  for  the  feeding  of  a  given  number  of 
hogs,  it  might  be  held  that  the  lien  on  the  hogs 
would  not  cover  the  account  for  the  cattle.  Fur- 
so  Taggard  v.  Buckmore,  42  sc  Heiisel  v.  Noble,  95  Pa.  St. 
Me.  77.                                                 345. 


BAILMENT  283 

ther,  even  in  tlie  same  matter,  the  lien  might  not 
cover  the  entire  account,  as  where  a  lien  is  waived 
for  accounts  to  a  certain  date.    (§§82,  240.) 

235.  Agister's  Lien.  Though  in  common  law 
the  agister's  lien,  strictly  considered,  is  not  fav- 
ored, still  there  are  statutes  which  provide  such 
protection  for  the  man  who  takes  stock  to  pas- 
ture. More  frequently  we  find  a  recognition  of 
the  rights  of  innkeepers  and  livery  men,  with  more 
consideration  for  these  men  in  the  common  law. 
At  first  glance  it  might  appear  strange  that  such 
a  line  should  be  drawn,  granting  the  right  of  lien 
to  the  innkeeper  and  refusing  it  to  the  man  who 
takes  a  flock  of  sheep  to  pasture,  or  cattle  to  feed; 
but  the  distinction  begins  in  the  essential  nature 
of  the  case.  The  agister  deals  with  men  whom  he 
knows  personally,  as  a  rule,  and  who  reside  in 
neighboring  places  probably.  The  customers  of 
the  innkeeper,  or  the  livery  man,  are  frequently 
strangers  whose  place  of  residence  is  often  un- 
known by  the  bailee.  If  the  bailor  is  permitted  to 
put  his  horse  in  the  stable  to  be  cared  for  for  a 
few  days,  and  then  to  depart  without  paying,  he 
might  very  likely  get  beyond  the  convenient  reach 
of  the  local  law,  making  the  collection  difficult  for 
the  stable  keeper.  So  in  the  decisions  we  read 
* '  The  innkeeper  is  not  bound  to  deliver  the  horse 
until  the  owner  has  defrayed  the  charge  for  the 
horse. "^"  But  the  agister's  lien  does  not  exist 
in  common  law.^^    A  lien  for  pasturing  stock  (in 

37  7n  re.   The  Hostler,   Yelv.  Cal.    364;    Auld    v.    Travis,    5 
67.  Colo.   App.   535,   39    Pac.   357; 

38  Hickman     v.     Thomas,     16  Wills  v.  Barrister,  36  Vt.  220; 
Ala.   666;    Lewis   v.    Tyler,    23  Tandy  v.  Elmore-Cooper  L.   S. 


284      ESSENTIALS  OF  VETERINARY  LAW 

the  absence  of  statutory  provision)  must  be  based 
on  a  contract,  expressed  or  implied;  and  in  the 
absence  of  evidence  showing  such  contract  there 
is  no  authority  to  submit  the  theory  of  a  lien  to 
the  jury.2^  "Wliere  the  statute  provided  for  an 
agister's  lien  it  has  been  held  that  a  man  who 
simply  pastured  a  horse  was  not  entitled  to  the 
lien,  for  he  was  not  in  the  business  of  agisting.^" 
So,  also,  where  the  statute  provided  for  a  lien  for 
livery  keepers,  it  was  held  that  a  teamster  who 
kept  another  horse  in  the  stable  with  his  own 
horses,  but  who  is  neither  an  innkeeper  nor  a 
livery  keeper,  has  no  right  of  lien  on  the  horse. ^^ 
A  person  who  simply  furnishes  a  certain  amount 
of  feed  for  stock,  has  no  lien.*^  On  the  other  hand, 
in  Nebraska  it  was  held  that  one  who  feeds  and 
cares  for  stock  in  pursuance  of  a  contract  with  the 
owner  has  a  lien  on  such  stock  for  such  feed  and 
care.^^ 

The  agister's  lien  does  not  cover  a  servant  em- 
ployed in  the  care  of  animals.**  A  person  hired  as 
a  groom  for  specified  time  has  no  lien  on  the  horse 
for  his  services ;  but  having  paid  for  the  food  and 
shoeing  he  is  entitled  to  a  lien  for  those  items,  hav- 
ing succeeded  to  the  farrier's  rights.*^ 

Com.  Co.,  87  S.  W.  614,  113  Mo.  43  Weber    v.    Whetstone,    53 

App.  409.  Neb.  371,  73  N.  W.  695. 

39  Cunningham    v.    Hammill,  **  Skinner     v.     Caughey,     64 

84  Mo.  App.  389.  Minn.  375,  67  N.  W.  203 ;  Under- 
go Seale  v.  MeCarty,  148  Cal.  wood  v.  Birdsell,  6  Mont.  141', 

61,  82  Pac.  845.  9    Pae.    992;    Bailey    v.    Davis, 

4iGoell  V.  Morse,  126  Mass.  19     Ore.     217,     23     Pac.     881; 

480.  Hooker  v.  McAllister,  12  Wash. 

*2  W.  H.  Howard  Com.  Co.  v.  46,  40  Pac.  617. 

National    L.    S.    Bank,    93    111.  45  Hoover    v.    Epler,    52    Pa. 

473.  522. 


BAILMENT  285 

A  lien  in  favor  of  those  who  have  kept  an  animal 
does  not  cover  an  isolated  case  of  feeding.^*^  The 
owner  of  a  farm  is  not  entitled  to  a  lien  on  the 
stock  of  a  farm  hand  in  his  employ,  though  it  was 
pastured  on  his  land,  and  fed  his  grain.^'^  Where 
evidence  showed  that  the  defendant  took  fifty 
head  of  cattle  it  was  held  to  imply  that  the  defend- 
ant was  in  the  business  and  had  a  lien.^^ 

A  statute  is  not  retroactive,  and  gives  no  right 
of  lien  for  accounts  before  it  went  into  effect."*^ 

236.  Trainer's  Lien.  The  right  of  a  trainer  to  a 
lien  for  his  services  has  been  frequently  recog- 
nized.^*' The  fact  that  the  animal  was  to  be  ille- 
gally run  for  bets  will  not  make  the  contract  to 
train  illegal.^^  The  trainer  has  a  common  law  lien 
for  training  and  a  statutory  lien  for  the  keep, 
according  to  some  decisions.^ ^  In  one  Iowa  case 
it  was  held  that  the  Iowa  law  did  not  give  trainer 
a  lien.^^  A  trainer  has  no  lien  for  shoeing  where 
no  charge  was  made  against  him  for  the  work.^* 

237.  Priority  of  Right.  There  has  been  an  ap- 
parent disagreement  as  to  the  relative  rights  of 
an  agister,  with  a  lien,  and  the  holder  of  a  mort- 
gage upon  the  stock.    In  several  cases  it  has  been 

46Conklin  v.  Carver,  19  Ind.  63  Me.  532;  Shields  v.  Dodge, 

226.  14  Lea,  356. 

47  Wright     V.     Waddell,     89  si  Harris    v.    Woodruff,    124 
Iowa,  350,  56  N.  W.  650.  Mass.  205. 

48  Bunnell    v.     Davisson,     85  52  Towle  v.  Eaymond,  58  N. 
Ind.  557.  H.  64;  Farney  v.  Kerr  (Tenn.), 

49  Allen  V.  Ham,  63  Me.  532.  48  S.  W.  103. 

BO  Bevan  v.   Waters,   3   C.   &  53  Scott  v.  Mercer,  63   Iowa, 

P.  520,  14  E.  C.  L.  693;  Jack-  325. 

son    V.    Holland,    31    Ga.    339;  64  Barringer  v.  Burns,  108  N. 

Scott  V.  Mercer,  98  Iowa,  258,  C.  606,  13  S.  E.  142. 
67  N.  W.  108;   Allen  v.  Ham, 


286      ESSENTIALS  OF  VETERINARY  LAW 

held  that  the  agister's  lien  takes  supremacy  over 
the  mortgage.^^  In  one  case  this  decision  was  on 
the  ground  that  the  mortgage  was  executed  while 
the  mortgagee  knew  that  the  stock  was  in  the  care 
of  the  agister,^^  A  mortgage  recorded  prior  to  the 
agistment  has  been  given  supremacy  of  right ;  ^" 
but  it  has  also  been  held  that  the  mortgagee 
waives  his  priority  right  by  his  failure  to  act.^^ 

It  would  seem  that  the  agister's  right  must  be 
considered  as  prior  to  the  mortgage  so  long  as  the 
possession  of  the  animals  remained  in  the  hands 
of  the  mortgagor;  ^^  and  that  after  foreclosure  his 
lien  would  remain  supreme  against  the  mortgagee 
as  the  new  owner. 

238.  Right  of  Sale.  Either  under  the  statutes 
or  by  special  contract  the  agister,  or  other  bailee, 
may  have  a  right  to  sell  the  animals  in  his  care 
to  satisfy  his  demands.  Otherwise  his  lien  would 
sometimes  be  of  small  value;  for  so  long  as  the 
animals  remain  they  must  be  fed  and  cared  for, 
and  these  matters  imply  added  expense  on  his 
part.  But,  though  he  may  have  a  lien  upon  all  the 
animals  agisted,  his  right  of  sale  only  includes  so 
many  as  may  be  necessary  to  cover  his  claim.  The 
sale  of  other  animals  will  not  be  considered  as 
void,  but  as  voidable.^"    (§§232,241.)    The  owner 

55  Case  V,  Allen,  21  Kas.  217;  Wright  v.  Sherman,  3  S,  Dak. 

Corning  V.  Ashley,  51  Hun,  483;  290,  52  N.  W.   1093,  17  L.  E. 

Willard    v.    Whinfield,    2    Kas.  A.   792. 

App.  53.  58  Woodard     v.      Myers,      15 

50  Tabor  v.  Salisbury,  3  Col.  Ind.  App.  42,  43  N.  E.  573. 

App.  335,  33  Pae.  190.  59  Blain  v.  Manning,   36   111. 

CTHaneh  v.  Eipley,  127  Ind.  App.    214. 

151,  26  N.  E.  70;   Woodard  v.  eo  Whitlock  v.  Heard,  la  Ala. 

Myers,   15  Ind.  App.  42;   Bis-  776,  48  Am.  Dec.  73. 
sell  V.  Pearce,  28  N.  Y.   252; 


BAILMENT  287 

may  replevin  his  stock  sold  in  excess  of  the  claim, 
or  he  may  accept  the  sale  and  recover  the  amount 
received  from  the  bailee.  If  the  statute  provides 
for  such  sale,  the  terms  of  the  statute  must  be 
strictly  observed.^^  *'At  common  law  the  bailee 
cannot  enforce  or  foreclose  his  lien  by  a  sale  of 
the  property;  he  only  has  the  right  to  hold  it  as 
security  for  his  debt  against  the  bailor.  This  has, 
however,  been  regulated  in  most  states  by  statute 
pennitting  a  public  sale  of  the  property,  after 
proper  notice  of  the  time  and  place,  to  satisfy  the 
amount  of  the  lien. ' '  ^^ 

239.  Estrays  and  Trespassing  Animals.  Aland- 
owner  finding  cattle  trespassing  upon  his  prem- 
ises may  simply  drive  them  off,  or  he  may  impound 
them,  either  on  his  own  premises  or  in  a  public 
pound.  If  they  have  done  damage  upon  his 
premises  he  may  bring  action  against  the  o^vner, 
or  he  may  hold  them  as  a  bailee  holding  a  lien 
upon  them  for  the  damage  done.  If  there  is  a  law 
governing  the  matter,  that  law  must  be  strictly 
observed.  He  must  not  injure  the  animals,  either 
in  his  driving  them  off,  nor  in  his  impounding 
them.  If  in  any  way  he  misuses  them  he  is  liable 
to  an  action  in  trespass.^^  Animals  distrained, 
or  taken  as  security  for  the  damage  they  have 
done,  must  be  captured  in  the  act.^-*  They  cannot 
be  distrained  after  they  have  left  the  field.^^    But 

61  Greenawalt  v.  Wilson,  52  341 ;  Lindon  v.  Hooper,  Cowp. 
Kas.  109,  34  Pac.  403.  414. 

62  Van  Zile,  Bailments  and  es  Holden  v.  Torrey,  31  Vt. 
Carriers,  75.  690 ;  Warring  v.  Cripps,  23  Wis. 

63  Wilson  V.  McLaughlin,  107  460 ;  Mclntyre  v.  Lockridge,  28 
Mass.  587;  Murgoo  v.  Cogswell,  U.  C.  Q.  B.  204;  Graham  v. 
1.  E.  D.  Smith  359.  Spettigue,  12  Ont.  App.  261. 

64  Harriman  v.  Fifield,  36  Vt. 


288      ESSENTIALS  OF  VETERINARY  LAW 

having  left  the  field  in  which  they  did  the  dam- 
age, they  may  still  be  impounded  if  in  a  different 
field.^^  When  thus  distrained  they  must  be  kept 
strictly  confined;  it  is  not  sufficient  to  put  them  in 
a  pasture.®'^  The  distrainer's  lien  is  waived  by  the 
release  of  the  stock ;  ^^  and  it  is  extinguished  by  a 
tender  of  payment  for  damages.^^  The  distrainer 
must  give  such  legal  notice  as  is  provided  by  the 
law.  The  lien  may  be  lost  by  a  failure  to  adver- 
tise,'^^ or  by  putting  the  animals  to  workJ^  It  is 
no  excuse  for  failure  to  advertise,  as  the  law  re- 
quired, that  the  owner  has  identified  his  animals 
and  promised  to  prove  ownershipJ^  But  when 
the  owner  sent  word  that  the  finder  need  not  ad- 
vertise the  horse,  the  owner  is  estopped  from  mak- 
ing the  failure  to  advertise  a  ground  for  failure 
to  pay  for  the  keep  J  ^  The  taker  up  of  animals 
estrayed  contrary  to  law,  or  distrained  for  tres- 
passing, has  a  lien  for  lawful  charges^* 

Where  the  law  provides  that  the  distrainer,  or 
finder  of  an  estrayed  animal  may  sell  the  animal, 
but  requires  that  a  notice  be  sent  to  the  owner 

66  MeKeen  v.  Converse,  68  13,  1  Pac.  230 ;  Parker  v.  King, 
N.  H.  173,  39  Atl.  435.  Ga.  Dee.  Pt.  1,  131. 

67  Harriman  v.  Fifield,  36  Vt.  72  Wright  v.  Eichmond,  21 
341.  Mo.  App.  76. 

68  Dunbar  v.  DeBoer,  44  111.  73  Campbell  v.  Headon,  89  111. 
App.  615.  App.  172. 

69  McPherson  v.  James,  69  74  Garabrant  v.  Vaughn,  2 
111.  App.  337;  Leavitt  v.  B,  Mon.  327;  Ford  v.  Ford,  3 
Thompson,  52  N.  Y.  62.  Wis.    399 ;    Mahler    v.    Holden, 

70  Cory  V.  Dennis,  93  Ala.  20  111.  363 ;  Logan  v.  Marquess, 
440,  9  So.  302 ;  McMillan  v,  53  Ind.  16 ;  Rice  v.  Underwood, 
Andrew,  50  111.  282.  27  Mo.  551. 

71  Weber  v.  Hartman,  7  Col. 


BAILMENT  289 

previous  to  the  sale,  if  the  animal  be  sold  without 
such  notice  the  owner  can  recover  possession  with- 
out paying  the  lienj^ 

240.  Waiver  of  Lien.  As  a  general  rule  a  lien 
is  lost  when  the  bailee  parts  voluntarily  with  pos- 
session; he  abandons  his  lien  thereby.^^  But  if 
an  agister  temporarily  leaves  the  stock  to  be 
herded  by  another,  and  the  stock  be  driven  off 
by  the  owner  in  his  absence,  the  lien  is  not  lost.'^^ 
A  tender  of  the  amount  really  due  under  the  lien 
extinguishes  the  lien,  though  the  bailee  may  sue 
for  the  larger  amount  claimed.'^  ^  As  previously 
mentioned,  a  lien  may  be  lost  by  putting  the  ani- 
mal to  work,  or  by  unlawful  sale.  The  lien  is  also 
lost  by  refusal  to  deliver  on  some  other  ground,  or 
by  an  agreement  to  give  credit,  or  by  sending  word 
simply  to  come  and  get  the  animal  held.     (§  82.) 

241.  Illegal  Sale  by  Bailee.  The  finder  of  an 
article  lost  has  a  title  thereto  subject  only  to  the 
right  of  the  owner;  but  a  bailee  has  no  real  title 
to  the  things  in  his  possession.  If,  therefore,  the 
bailee  should  unlawfully  sell  animals  in  his  pos- 
session he  can  give  no  title  thereto,  and  the  owner 
may  recover  possession  from  the  third  party,  who 
may  have  been  a  bona  fide  purchaser,  who  may 
have  bought  in  ignorance  of  the  vendor's  lack  of 

75  Bailey  v.  O  'Fallon,  30  Col.  Ernst,  34  Neb.  482,  51  N.  W. 

419,  70  Pac.  755.  1032;    Cardinal  v.   Edwards,   5 

T6  Fishell  V.  Morris,  57  Conn.  Nev.  36. 

547,    18    Atl.    717;    Wright    v.  77  Willard     v.     Whinfield,     2 

Waddell,  89  Iowa,   350,  56   N.  Kas.    App.    53,    43    Pac.    314; 

W.  650;  Danforth  v.  Pratt,  42  Weber   v.   Whetstone,   53    Neb. 

Me.  50;   McPherson  First  Nat.  371,  73  N.  W.  695. 

Bank  v.  Barse  Live  S.  Com.  Co.,  78  Berry    v.    Tilden,    70    Mo. 

61    Mo.    App.    143;    Powers   v.  489. 
Botts,  58  Mo.  App.  1;  Kroll  v. 


290      ESSENTIALS  OF  VETERINARY  LAW 

title/"    The  innocent  purchaser  must  get  his  satis- 
faction from  the  vendor  or  not  at  all. 
242.  Lien  Once  Lost  Cannot  Be  Revived.    A 

lien  once  lost  cannot  be  revived.^^    (§82.) 

"9  Calhoun    v.    Thompson,    56       16  Ohio,  431 ;  Dunham  v.  Lee, 
Ala.  166;  Lovejoy  v.  Jones,  30       24  Vt.  432. 
N.   H.   164;   Johnson  v.   Miller,  so  Van  Zile,  Op.  cit.  73. 


TABLE  OF  CASES  CITED 


Adams,  (ex.  rel.)  v.  Burdge, 

95  Wis.  390,  70  N.  W.  347, 

37  L.  R.  A.  157 149 

Adams    v.    ^Milwaukee,    144 

Wis.  371,  129  N.  W.  518. 

11,  154,  169,  171,  173 

Adams  v.  Milwaukee,  228  U. 

S.  572..  11,  154,  169,  171,  173 
Adams   (Adms.)   v.  Stewart, 

5   Har.   144 93 

Aiton  V.  Board  of  Medical 

Examiners,    13   Ariz.   354, 

114  Pae.  962 60 

Allen  V.  Allen,  2  P.  &  W. 

166   248 

Allen  V.  Ham,   63   Me.  532 

105,  285 

AUen  V.  State,  42  Tex.  517.252 
Allison  V.  Cash,  143  Ky.  679, 

137  S.  W.  245,  21  Cyc.  405. 

148,  151 

Almond  v.  Nugent,  34  Iowa, 

300,  11  Am.  R.  147 76 

Allopathic    State    Board    of 

Med.  Exrs.  v.  Fowler,  50 

La.  Ann.  1358,  24  So.  809  52 
American  Preservers'  Co.  v. 

Drescher,  4  Misc.  (N.  Y.) 

482,  24  N.  Y.  S.  361 278 

Angus  Cattle  Co.  v.  McLeod, 

(Neb.)  152  N.  W.  322... 261 
Anson  v.  Dwight,   18  Iowa, 

241   98,  233 

Apothecaries '  Co.  v.  Bentley, 

1  C.  &  P.  538 93 


Arbuckle  v.  Pflaeging,  20 
Wy.  351,  123  Pac.  918...  143 

Arkansas  Val.  L.  etc.  Co.  v. 
Mann,  130  U.  S.  69 247 

Armour  &  Co.  v.  Augusta, 
134  Ga.  178,  67  S.  E.  417.199 

Asheville  v.  Nettles,  164  N. 
C.  315,  80  S.  E.  236 168 

Atterberry  v.  State,  19  Tex. 
App.  401    250 

Attorney  General  v.  Birming- 
ham, Tame  &  R^a  D.  Dist. 
L.  R.  C.  D.  (1910)  1  Ch. 
48   38 

Attorney  General  v.  Chur- 
chill's Veterinary  Sanato- 
rium, Ltd.,  79  L.  J.  Ch. 
714,   (1910)   2  Ch.  401...   67 

Attorney  General  v.  Myddle- 
ton's  Ltd.  (1907)  1  J.  R. 
471   67 

Atzroth  V.  State,  10  Fla.  207.253 

Aubuchon  v.  Pohlman,  1  Mo. 
App.   298    258 

August  Brandt  &  Co.  v.  Ver- 
hagen,  (Wis.)  152  N.  W. 
448    248 

Auld  V.  Travis,  5  Co.  App. 
535,  39  Pac.  357 283 

Austin  V.  Miller,  74  N.  C. 
274 278 

Bacon  v.  Walker,  204  U.  S. 

311   25 

Bailey  v.  Davis,  19  Ore.  217, 

23  Pac.  881   284 

291 


292 


TABLE  OF  CASES  CITED 


BaUey  v,  O'FaUon,  30  Col. 

419,  70  Pac.  755 289 

Barbour  v.   Martin,  62  Me. 

536   71 

Barnes,  Ex  parte,  and 
Barnes  v.  State,  83  Neb.  433, 

119  N.  W.  662 47 

Barney  v.  Pinkham,  29  Neb. 

350,  45  N.  W.  694,  26  Am. 

St.  E.  389 75 

Barringer  v.  Burns,   108  N. 

C.  606,  13  S.  E.  142 285 

Barrus  v.  Phaneuf,  166  Mass. 

123,  44  N.  E.  141 122,  123 

Barse  Live  Stock  Com.  Co. 

V.  Adams,  2  Ind.  Ter.  119, 

48  S.  W.  1023 281 

Bartlett    v.    Lockwood,    160 

U.  S.  357 147 

Bass  V.  Cantor,  123  Ind.  444, 

24  N.  E.  147 271,  274 

Bassett   v.    CoUis,    2    Camp. 

523 243 

Batley  v.  Kynock,  L.  E.  20 

Eq.  Cas.  632 122 

Bear   v.   Cedar  Eapids,   147 

Iowa,  341,  126  N.  W.  324, 

27  L.  E.  A.  (N.  S.)  1150.167 
Beatty  v.  Cullingsworth,  Q. 

B.  D.,  44  Cent.  L.  J.  153..    89 
Beck  V.  German  Klinik,   78 

Iowa,  696,  43  N.  W.  617. .   79 
Becker  v.  Janiski,  15  N.  Y. 

Sup.  675,   27  Abb.  N.  C. 

45   70,  71,  73 

Beeks  v.  Dickinson  Co.,  131 

Iowa,  244,  108  N.  W.  311, 

6  L.  E.  A.  (N.,S.)  831...  151 
Belknap   v,   Belknap,   20    S. 

Dak.  482,  107  N.  W.  692.  .253 
Bellinger     v.     Craigue,     31 

Barb.   534    87 

Bellows  V.  Denison,  9  N.  H. 

293   276 


Bellows  V.  Eaynor,   207   N. 

Y.  389,  101  N.  E.  181.... 169 
Bernard  v.   Willamette  Box 

&  Lumber  Co.,  64  Ore.  233, 

129    Pac.   1039 39 

Berry  v.  Tilden,  70  Mo.  489.289 
Berry  v.  State,  (Tex.)  135  S. 

W.  631  61,  76 

Best  V.  Osborne,  Ey.  &  Mo. 

290  242 

Best    V.    Vedder,    58    How. 

Prac.  187 81 

Bevan  v.  Waters,  3  C.  &  P. 

520,  14  E.  C.  L.  693 285 

Beyman   v.    Black,    47    Tex, 

588   252 

Bigelow  V.  Maine  Cent.  E.  E. 

Co.,  110  Me.  105,  85  Atl. 

396 200 

BisseU  V.  Pearce,  28  N.  Y. 

252    286 

Black  V.   Vaughan,   70   Tex. 

47,  7  S.  W.  604 250 

Blain    v.    Manning,    36    111. 

App.  214 286 

Blair  v.  Bartlett,   75  N.  Y. 

150   87 

Blair  v.  Forehand,  100  Mass. 

136  .' 230 

Blazier    v.    Miller,    10   Hun, 

435   154,  173 

Board  of  Health  v.  Tupper, 

210  Mass.  378,  96  N.  E. 

1096    24 

Board  of  Liquidation  v.  Mc- 

Comb,  92  U.  S.  531 138 

Board  of  Medical  Examiners 

V.    Clausen,    (Wash.)    146 

Pac.  630   63 

Board  of  Medical  Examiners 

V.  Eisen,  61  Ore.  492,  123 

Pac.   52    61 

Board  of   Trade  v.   People, 

91  111.  88  54 


TABLE  OF  CASES  CITED 


293 


Bodger  v.  Nieholls,  28  L.  T. 

N.   S.   441    240 

Boldt  V.  Murray,  2  N.  Y.  St. 

E.  232,  affirmed,  113  N.  Y. 

670,  21  N.  E.  1116 75 

Bonham's  Case,  8  Coke,  107a  45 
Boom  V.  Eeed,  69  Hun,  426, 

23  N.  Y.  Sup.  421 72 

Boor    V.    Lowery,    103    Ind. 

468,  53  Am.  St.  R.  519,  3 

N.  E.   151    81 

Borden  v.  Board  of  Health, 

Montclaire,    81    N.    J.    L. 

(52   Vrom.)    218,   80   Atl. 

30 11,  171 

Bower  v.  Smith,  8  Ga.  74 .  .   93 
Breckenridge  Co.  v.  McDon- 
ald, 154  Ky.   721,   159   S. 

W.  549 140 

Brenan  v.  Currint,  Say.  224.104 
Brent  v.  Kimball,  60  111.  211.234 
Briggs   V.    Hunton,    87    Me. 

145,  32  Atl.  794,  47  Am. 

St.  E.  318 ...255,  256 

Brimmer  v.  Eebman,  138  U. 

S.  78 199,  200 

Bronson  v.  Hoffman,  7  Hun, 

674   75 

Brooke  v.  People,  23  Col. 

375,  48  Pac.  502 251 

Brown   v.    Doyle,    69    Minn. 

543    245 

Brown     v.      Maryland,      12 

Wheat.  419 147 

Brown  v.  Mattingly,  42  Ky. 

592    256 

Brown  v.  Purdy,  8  N.  Y.  St., 

E.  143 145 

Brown  v.  Eobinson,  1  C.  & 

P.  264 93 

Browne  v.  Livingston  Co.  126 

Mich.  276  145 

Bruns  v.  State,  33  Tex.  Cr. 

415,  26  S.  W.  722 5,  253 


Buchman  v.  State,  59  Ind.  1, 

26  Am.  E.  75 122,   124 

Buck  V.  Brady,  110  Md.  568, 

73  Atl.  277 152,  233 

Buckmaster  v.  Smith,  22  Vt., 

203    249 

Budd     V.     McLaughlin,     10 

Manitoba,  75 245 

Bunnell  v.  Davisson,  85  Ind. 

557    285 

Burnham  v.  Jackson,  1  Col. 

App.  237    77 

Burns  v.  Barenfield,  84  Ind. 

43    119 

Busfield  V.  Wheeler,  14  Al- 
len,   (Mass.)    139 110 

Bushnell  v.  C.  B.  &  Q.  E.  E. 

Co.,   259   111.  391,   102   N. 

W.  785   31 

Caldwell  v.  Bridal,  48  Iowa, 
15   241 

Calhoun  v.  Thompson,  56 
Ala,  166 280,  290 

California  Eeduc.  Co.  v.  San- 
itary Eed.  Works,  199  U. 
S.  306   154 

Campau  v.  Langley,  39  Mich. 
451   230 

Campbell  v.  District  of  Co- 
lumbia, 19  App.  D.  C.  131.232 

Campbell  v.  Headon,  89  111. 
App.   172    288 

Campbell  v.  Page,  67  Barb. 
113    274 

Cardinal  v.  Edwards,  5  Neb. 
36  109,  289 

Carpenter  v.  Blake,  60  Barb. 
488  75,  79 

Carpenter  v.  Cook,  67  Vt. 
102,  30   Atl.  998 264 

Case  V.  Allen,  21  Kas.  217.  .286 

Casey  v.  Donovan,  65  Mo. 
App.  521    278 


294 


TABLE  OF  CASES  CITED 


Cavender   v.   Fair,   40    Kas. 

182,  19  Pac.  038 259 

Chamberlain     v.     Gage,     20 

Iowa,  303 254 

Chapman  v.    Muskegon   Co., 

169  Mich.   10,  134  N.  W. 

1025  16 

Chapman,  Ex  rel.,  v.  Board 

of  Med.  Exmrs.,  34  Minn. 

387,  26  N.  W.  123 60 

Chase  v.  Nelson,  39  111.  App. 

53   87 

Chenowith  v.  State  Board  of 

Med.  Exrs.,  57  Col.  74,  141 

Pac.  132  61 

Chestnut  v.  People,  21  Col. 

512,  42  Pac.  656 252 

Chicago    V.    Bowman    Dairy 

Co.,  234  111.  294,  84  N.  E. 

294    173 

Chicago  &  A.  R.  E.  Co.  v. 

Erickson,    91   111.   613,   33 

Am.  Eep.  70 5,  148 

Chicago  V.   Weber,   246  111. 

304,  92  N.  E.  859 32 

Christian  Co.,  Ex  rel.,  v.  Gor- 
don, (Mo.)  176  S.  W.  1..  12 
Church  V.  Knowles,  101  Me. 

264;   63  Atl.  1042 247 

Clarendon  Land,  etc.  Co.  v. 

McClelland,    89    Tex.   483, 

34  S.  W.  98,  35  S.  W.  474.260 
Cleveland  v.  Spier,  16  C.  B. 

(N.  S.)    399,   McClelland, 

Civ.    Mai.    508 77 

Coggs    V.    Bernard,     2    Ld. 

Eaym.  909   275 

Cole  V.  Hall,  103  111.  30 233 

Collins  V.  Bennett,  46  N.  Y. 

490 277,  278 

Collins  V.  State,  32  S.  C.  R. 

(U.  S.)  286,  223  U.  S.  288  49 
Commonwealth    v.    Brandon, 

43  Ky.  2    255 


Commonwealth  v.  Drew,  208 
Mass,  493,  94  N.  E.  682.  .172 

Commonwealth  v.  Gilbert, 
160  Mass.  157,  35  N.  E. 
454    231 

Commonwealth  v.  Harris,  47 
Ky.   373    255 

Commonwealth  v.  Eiee,  93 
Ky.  393,   20  S.  W.  431..   51 

Commonwealth  v.  Spring,  19 
Pick.  396   58 

Commonwealth  v.  Wheeler, 
205  Mass.  384,  91  N.  E. 
415    167 

Concklin  v.  Havens,  12 
Johns.  314 248 

Conklrn  v.  Carver,  19  Ind. 
226   285 

Conkey  v.  Carpenter,  106 
Mich.  1,  63  N.   W.  990..   92 

Conner  v.  Winton,  8  Ind. 
315,  65  Am.  St.  Dec.  761.    75 

Conwell  V.  Smith,  8  Ind.  530.256 

Copeland  v.  Draper,  157 
Mass.  588,  19  L.  E.  A.  283, 
32  N.  E.  944 276 

Corn  V.  State,  41  Tex.  301.252 

Corning  v.  Ashley,  51  Hun, 
483   286 

Cory  V.  Dennis,  93  Ala.  440, 
9  So.  302   288 

Costello  V.  Ten  Eyck,  86 
Mich.  348,  49  N.  W.  152.  .260 

Courtney  V.  Henderson,  (Ma- 
rine Court,  N.  Y.)  Mc- 
Clelland, Civ.  Mai.  273 
76,    77 

Covington  Board  of  Health 
V.  KoUman,  156  Ky.  351, 
160  S.  W.  1052 173 

Cowles  V.  Balzer,  47  Barb. 
562    264 

Coyle  V.  Campbell,  10  Ga. 
570 94 


TABLE  OF  CASES  CITED 


295 


Craig  V.  Chambers,  17  Ohio 
St.   253    75 

Cranston  v.  Mayor  of  Au- 
gusta, 61  Ga.  572 230 

Cubit  V.  O'Dett,  51  Mich, 
347,  16  N.  W.  679 133 

Cummings  v.  Harris,  3  Vt. 
244,  23  Am.  Dec.  206 281 

Cummings  v.  Perham,  42 
Mass.  555   6,  233 

Cunningham  v.  Hammill,  84 
Mo.  App.  389 284 

Cunningham  v.  Macon  R.  R. 
Co.  109  U.  S.  446 138 

Dade  v.  United  States,  40 
App.  D.  C.  94 173 

Dale  V.  Donaldson  Lumber 
Co.,  48  Ark.  188,  2  S.  W. 
703    87 

Danforth  &  Co.  v.  Crook- 
shanks,  68  Mo.  App.  311 
241,  244 

Danforth  v.  Pratt,  42  Me. 
50 104,  109,  289 

Davidson  v.  New  Orleans, 
96  U.  S.  97 151 

Davis  V.  Commonwealth,  17 
Grat.  617  233 

Davis  V.  Randall,  97  Me.  36, 
53  Atl.  835   255 

Dean  v.  Keate,  3  Camp.  4 .  .  273 

Decisions  2583,  2584,  Food 
&  Drugs  Act 197 

Deems  v.  Mayor  of  Balti- 
more, 80  Md.  164,  30  Atl. 
648,  26  L.  R.  A.  541...154,  173 

Deeves  v.  Lockhart,  51  N. 
Y.  Super.  Ct.  302 87 

DeGarca  v.  Galvin,  55  Tex. 
53    252 

Dement,  Ex  parte,  53  Ala. 
389    122 


Dent  v.  West  Virginia,  129 

U.  S.  114 46,49,52 

Dickerson  v.  Gordy,  5  Rob. 

(La.)    489    93 

Dills  V.  State,  59  Ind.  15..  122 
District  of  Columbia  v.  Lyn- 

ham,  16  App.  D.  C.  85..  167 
Dix  v.  Sommerset  Coal  Co., 

217  Mass.  146,  104  N.  E. 

433   262 

Dixon    V.    People,    168    HI. 

179 122 

Dixon  V.  State,  19  Tex.  134.251 
Dorion  v.  Jacobsen,  113  111. 

App.  563    96 

DriscoU    V.    Commonwealth, 

93  Ky.  393,  20  S.  W.  431.  51 
DuBoise   v.   Decker,   130   N. 

Y.  325,  29  N.  E.  313,  14 

L.  R.  A.  429 76 

Duckworth     v.     Walker,     1 

Jones    Law,    (46    N.    C.) 

507    243 

Duffees   v.   Judd,   48   Iowa, 

256   264 

Dunbar   v.    Deboer,    44    111. 

App.  615    288 

Dunham  v.  Lee,  24  Vt.  432 

280,  290 

Dunning  v.  Crofutt,  81  Conn. 

101,   70  Atl.   630 247 

Durgin  v.  Minot,  203  Mass. 

26,  89  N.  E.  144 40 

Dusaw   v.    State   Veterinary 

Board,  157  Mich.  246,  121 

N.  W.  759 50 

Easter    v.    Goyne,    51    Ark. 

222,  11  S.  W.  212 259 

Eastman  v.  State,  109  Ind. 

278,  10  N.  E.  97 49 

Ebner   v.    Mackey,    186   111. 

297,  57  N.  E.  834 71 


296 


TABLE  OF  CASES  CITED 


Eekhardt  v.  Buffalo,  156  N. 

Y.  658,  50  N.  E.  1116 40 

Edwards  v.  Carr,   13  Gray, 

(Mass.)    234    273 

Edwards  v.  Lamb,  69  N.  H. 

599,  45  Atl.  480,  50  L.  R. 

A.  160    84 

Edwards  v.  Osman,  84  Tex. 

656,  19  S.  W.  868 252 

Eichenlaub    v.    St.    Joseph, 

113  Mo.  395,  18  L.  E.  A. 

590   27 

Elgin  E'oad  Trustees  v.  In- 

nes,    14    Rettie,    (Sc.    Ct. 

Sess.)   48   265 

Elmore    v.    Fitzpatrick,    56 

Ala.  400  249 

Eisner  v.  State,  22  Tex.  App, 

687,  3  S.  W.  474 252 

Elton  V.  Brogden,  4  Camp. 

281   242,  244 

Elton    V.    Jordan,    1    Stark, 

127   242,  244 

Ely  V.   Thompson,  3  A.  K. 

Marsh,   70    138 

Ely  V.  Wilbur,  48  N.  J.  L. 

685    87 

Eshleman  v.  Union  Stock- 
yards Co.,  222  Pa.  20,  70 

Atl.  899 136,  153 

Espy  V.  State,  32  Tex.  375 

249,  250 

Faith  V.  State,  32  Tex.  373 

249,  250 

Faris   v.    Lewis,   2   B.   Mon. 

375   241 

Farkas  v.  Powell,  86  Ga.  800, 

12  L.  E.  A.  397,  13  S.  E. 

200  280 

Farney  v.  Kerr,  (Tenn.)  48 

S.  W.  103    285 

Farrar  v.  Andrew  Peterson 

&  Co.,  72  Wash.  482,  130 

Pac.  753,  44  L.  E.  A.  (N. 


S.)  1092;  affirmed  on  re- 
hearing, 133  Pac.  594,  44 
L.  E.  A.  (N.  S.)  1094.. 
153,    262 

Farrell  v.  Manhattan  Mar- 
ket Co.,  198  Mass.  271,  84 
N.  E.  481,  15  L.  E.  A. 
(N.  S.)  884 200 

First  National  Bank  v.  Barse 
Live  Stock  Com.  Co.,  61 
Mo.  App.  143 109,  289 

First  National  Bank  v.  Eich- 
meier,  153  Iowa,  154,  133 
N.   W.   454    247 

First  National  Bank  v. 
Hughes,  5  Cal.  U.  C.  454, 
46   Pac.   272    245 

Fishell  V.  Morris,  57  Conn. 
547,  18  Atl.  717,  6  L.  E. 
A.  82   109,  289 

Fisher  v.  Clark,  41  Barb. 
329   260 

Fisher  v.  McGirr,  1  Gray,  1 .  138 

Fitzgerald  v.  Evans,  49 
Minn.  541,  52  N.  W.  143.120 

Fletcher  v.  Ehode  Island,  5 
How.    504    146 

Fletcher  v.  Jacob  Dold  Pack- 
ing Co.,  58  N.  Y.  S.  612; 
Affd.  169  N.  Y.  571,  61  N. 
E.   1129    247 

Flinn  v.  Prairie  Co.,  60  Ark. 
204,  29  S.  W.  459 122 

Florey  v.  State,  13  Tex.  App. 
655   250 

Folsom  V.  State  Veterinary 
Board,  158  Mich.  277,  122 
N.  W.   529    50 

Fonville  v.  Casey,  1  Murph. 
(N.  C.)   389   249 

Ford  V,  Ford,  3  Wis.  399. .  .288 

Foreman  v.  State  Board  of 
Health,  (Ky.)  162  S.  W. 
796  61 


TABLE  OF  CASES  CITED 


297 


Fort  V.  City  of  Brinkley,  87 

Ark.  400,  112  S.  W.  1084.  63 
Fossett    V.    State,    11    Tex. 

App.  40    254 

Foster    v.    Swope,    41    Mo. 

App.  137   265 

French  v.  Vining,  102  Mass. 

132,  3  Am.  St.  E.  440. . .  .200 
Fuller,  Ex  rel.,  v.  Board  of 

Med.    Exmrs.,    34    Minn. 

391,  26  N.  W.  125 60 

Gaines   v.   Waters,   64  Ark. 

609    31 

Gallaher    v.    Thompson, 

Wright,    (Ohio)   466 92 

Galveston  Land  &  Imp.  Co. 

V.    Pracker,    3    Tex.    Civ. 

App.  261,  22  S.  W.  830.. 265 
Garabrant  v.  Vaughn,  2  B. 

Mon.  327    288 

Gardner  v.  Michigan,  199  U. 

S.  325  154 

Garth    v.    Everett,    16    Mo. 

490   248,  249 

Gates  v.  Preston,  41  N.  Y. 

113    87 

Geer  v.  Connecticut,  161  U. 

S.  519 231 

Georgia  N.  K.  Co.  v.  Ingram, 

114  Ga.  639,40  S.  E.  708.  87 
Gerken  v.  Plimpton,  70  N. 

Y.   Sup.   793 72 

Glidden    v.    Pooler,    50    111. 

App.  36    244 

Goble  v.  Dillon,  86  Ind.  327.  87 
Goell   V.   Morse,    126   Mass.- 

480    284 

Gore  V.  Brockman,  138  Mo. 

App.  231,  119  S.W.  1082.  76 
Graham  v.  Gautier,  21  Tex. 

Ill  76,  79 

Graham  v.  Spettigue,  12  Ont. 

App.  261  287 


Gramm  v.   Boener,  56   Ind. 

497   76 

Grattop  V.  Rowheder,  1  Neb. 

660,  95  N.  W.  679 96 

Graves  v.   Moses,   13  Minn. 

335   275 

Grayson  v.  Lynch,  163  U.  S. 

468   -60 

Green  v,  Higenbotam,  3  N. 

J.  L.  60 94 

Greenawalt    v.    Wilson,    52 

Kas.  109,  34  Pac.  403 287 

Grinnell  v.  Cook,  3  Hill,  485, 

38  Am.  Dec.  663 258 

Grossman  v.  Oakland,  36  L. 

R.   A.    593,   30    Ore.   478, 

41  Pac.  5 30 

Haag  V.  City  of  Mt.  Vernon, 
58  N.  Y.  S.  585,  41  App. 

Div.   366    40 

Haire  v.  Reese,  7  Phia.  138.  87 
Halty  V.  Markel,  44  111.  225.260 
Hamilton     v.      McLoughlin, 

145  Mass.  20 110 

Hanch   v.   Ripley,    127    Ind. 

151,  26  N.  E.  70 286 

Hancke   v.    Hooper,    7    Car. 

&  P.  81 81,  92 

Hanley   v.    Kansas    City    S. 

Ry.  Co.,  187  U.S.  617....  147 
Hannibal  &  St.  Jos.  R'.  E. 
Co.  V.  Husen,  5  Otto,  465 

5,  14,  139,  148,  149 

Harby  v.  Wells,  52  S.  C.  156, 

29   S.  E.  563 259 

Hargan  v.  Purdy,  93  Ky. 

424,  20  S.  W.  432 51 

Harriman  v.  Fifield,  36  Vt. 

341   287,  288 

Harrington     v.     Snyder,     3 

Barb.  380 274 

Harris   v.    Woman's   Hosp., 
14  N.  Y.  Supp.  881 70 


298 


TABLE  OF  CASES  CITED 


Harris  v.  Woodruff,  124 
Mass.  205 285 

Hart  V.  Vidal,  6  Cal.  56 117 

Hathorn  v.  Eichmond,  48  Vt. 
557    76 

Havey  v.  Petrie,  100  Mich. 
190    240 

Hawker  v.  New  York,  170 
U.  S.  189 46,  49,  61 

Hawkins  v.  Haynes,  71  Ga. 
40   273 

Hawkins  v.  Hoye,  (Miss.) 
66  So.  741 11,  171 

Heath  v.  Glison,  3  Ore.  64. .   76 

Heisrodt  v.  Haekett,  34  Mich. 
283,  22  Am.  S.  Eep.  529 
98,  233 

Helland  v.  Bridenstine,  55 
Wash.  470,  104  Pac.  626. .   85 

Henderson  &  Campbell  v. 
Hall  &  Hughes,  87  Ark.  1, 
112  S.  W.  171 103 

Hensel  v.  Noble,  95  Pa.  345 
281,   282 

Herber  v.  State,  7  Tex.  69.  .252 

Herndon  v.  City  of  Spring- 
field, 137  Mo.  App.  513, 
119  S.  W.  467 102 

Herrick  v.  Gary,  65  HI.  101.152 

Herriek  v.  Gary,  83  HI.    85.260 

Hewett  V.  Board  of  Medical 
Examiners,  148  Cal.  590, 
84  Pac.  39    59 

Hewett  V.  Woman's  Hospit- 
al Aid  Assn.,  73  N.  H. 
556,  64  Atl.  190,  7  L.  R. 
A.   (N.  S.)   496 84 

Hibbard  v.  Thompson,  109 
Mass.   286    88 

Hickman  v.  McMorris,  149 
Ky.  1,  147  S.  W.  768..  16,  139 

Hickman  v.  Thomas,  16  Ala. 
666    283 


Highland    v.     Schulte,     123 

Mich.  360,  82  N.  W.  62.  .139 
HUl  V.  Ball,  2  H.  &  N.  298.239 
Hillyard  v.  Grand  Trunk  Ry. 

Co.  8  Ont.  583 266 

Hine  v.  New  Haven,  40  Conn. 

478    27 

Hitchcock    V.    Burgett,     38 

Mich.  501   80,  88 

Hoag   V.    Orange    Mt.   Lnd. 

Co.,    12    N.    J.    L.    Jour. 

243 265 

Hbffman    v.    Oats,    77    Ga. 

701   242 

Hoi  den    v.    Torrey,    31    Vt. 

690  287 

Homer  v.   Thwing,   3   Pick. 

492   275 

Hooker     v.     McAllister,     12 

Wash.  46,  40  Pac.  617... 284 
Hoover  v.  Epler,  52  Pa.  522 

104,    284 

Hostler,   The,   In   re,   Yelv. 

67  283 

Houska  V.    Hrabe,   S.  Dak. 

151  N.  W.  1021 261 

Houston   V.    State,   13    Tex. 

App.  595    250 

Howard  v.  Babcock,  21  HI. 

259    271 

Howard  Com.  Co.  v.  Nation- 
al L.  S.  Bank,  93  111.  App. 

473   284 

Howell  v.  Smith,  108  Mich. 

350,  66  N.  W.  218 117 

Hoyt  v.  McLoughlin,  250  111. 

442,  95  N.  E.  464 37 

Hubbard  v.  AUyn,  200  Mass. 

166,  86  N.  E.  356 132 

Hull  V.  Hull,  48  Conn.  250, 

40  Am.  R.  165 249 

Humphrey    v.    Dunnells,    21 

Cal.    App.   312,    131    Pac. 

761    33 


TABLE  OF  CASES  CITED 


299 


Hunt  V.  Gray,  35  N.  J.  L. 

227   24:^ 

Hunt  V,  State,  33  Tex,  Crim. 

93,  25  S.  W.  127 254 

Hurd  V.  Lacy,  93  Ala.  427, 

9    So.    378 265 

Hurley   v.    Eddingfield,    156 

Ind.  416,  59  N.   E.   1058, 

53   L.  E.  A.   135 70 

Hurst  V.  Warner,  102  Mich. 

238,  60  N.  W.  440 148 

Hutton  V.  State,  7  Tex.  Crim. 

App.  44   252 

Hyrne  v.  Erwin,  23  S.  C.  226, 

55  Am.  E.  15 80,  8] 

Jackson,  Cook  &  Co.  v.  Hol- 
land, 31  Ga.  339 258,  285 

Jacobson  v.  Massachusetts, 
197  U.  S.  11 46 

Janney,  Ex  rel.,  v.  House- 
keeper, 70  Md.  162 89 

Jarvis  v.  Eiggin,  94  111.  164 
5,   148,   150 

Jeffrey  v.  Bigelow,  13  Wend. 
518    241 

Jenkins  v.  Board  of  Educa- 
tion, 234  111.  422,  84  N. 
E.   1046    6 

Jenkins  v.  French,  58  N.  H. 
532    81 

Jennings  v.  State  Veterinary 
Board,  156  Mich.  417,  120 
N.  W.  785   50 

Jew  Ho  V.  Williamson,  103 
Fed.  10 145 

Johnson  v.  Lewis,  151  Wis. 
615,  139  N.  W.  377 234 

Johnson  v.  Miller,  16  Ohio, 
431   280,  290 

Johnson  v.  Simonton,  43  Cal. 
242    170 

Johnson  v.  State,  1  Tex. 
A])]).    333     252 


.Tohnson  v.  Steam  Gauge  & 
Lantern  Co.,  146  N.  Y. 
152,  40  N.  E.  773,  affirm- 
ing 72  Hun,  535,  25  N.  Y. 

Sup.  639 119 

Jones  V.  Angell,  85  Ind.  376.   88 
Jones  V.  Bright,  5  Bing.  533 .244 
Joy  V.  Bitzer,  77  Iowa,  73.  .241 
Judah  V.  McNamee,  3  Blackf . 
269    94 

Kaiahua,  In  re,  19  Ha.  218.145 
Kansas   City  v.   Sihler   Hog 

Cholera     Serum     Co.,     87 

Kas.    786,    125    Pac.    70. 

Sustained,    88    Kas.    164, 

127   Pac.   540 32 

Kearnes  v.  Caldwell,  7  Ky. 

L.  450 96 

Keith  V.  Lothrop,  64  Mass. 

453    110 

Kelley  v.  Grundy,  20  Ky.  L. 

1081,  45  S.  W.  100 248 

Kelley  v.  Tillourey,  81  Conn. 

320,  70  Atl.  1031 234 

Kellogg  V.  Loveley,  46  Mich. 

131,  8  N.  W.  699,  41  Am. 

Eep.    151    248 

Kempster  v.   Milwaukee,   97 

Wis.  343,  79  N.  W.  743 .  .  13.*? 
Kennedy  v.  Board  of  Health, 

2   Pa.   366 145 

Kerbs    v.    State    Veterinary 

Board,  154  Mich.  500,  118 

N.   W.    4 50 

Keybolte  v.  Buff  on,   (Ohio) 

105  N,  E.  192 262 

King  V.  Davenport,   98   111. 

305    27 

Kirk   V.   Wyman,    83    S.    C. 

372,  65  S.  E.  387 131 

Kissan    v.    Jones,    56    Hun, 

a:vi    274 


300 


TABLE  OF  CASES  CITED 


Knoblauch,  Ex  rel.,  v.  War- 
den of  City  Prison,  153 
N.  Y.  Sup.  463 13,  26 

Kollenberger  v.  People,  9 
Col.  233,  11  Pac.  101 254 

Kollock,  In  re,  165  U.  S. 
526    10 

KroU  V.  Ernst,  34  Neb.  482, 
51  N.  W.  1032 109,  289 

Kuhlman,  Mrs.  wid  John  G. 
V.  Eucker,  (U.  S.  Dist.  Ct. 
New  Orleans,  Mch.  15, 
1915.)  30  U.  S.  Public 
Health  Eepts.  1033 160 

Lafitte,  In  re,  L.  E.  20  Eq. 

Cas.  650 122 

Landon     v.     Humphrey,     9 

Conn.    209,    23    Am.    Dec. 

333    81 

Larimer  County  Commrs.  v. 

Lee,  3  Col.  App.  177,  32 

Pac.  841 122 

Lasher   v.    People,    183    111. 

226,  55  N.  E.  663 54 

Lathrope  v.  Flood,  63  Pac. 

1007.     Also   see   135   Cal. 

458,  67  Pac.  683 71 

Lavner  v.  Independent  Light 

&    Water    Co.,    74    Wash. 

373,   133    Pac.    592 39 

Lawson  v.   Conway,    37   W. 

Va.    159,    16    S.    E.    564, 

18  L.  E.  A.  627,  38  Am. 
St.  E.  17 71,  87 

Lawrence  v.  McAlvin,  109 
Mass.   311    133 

Leach  v.  Ftench,  69  Me.  389, 
31  Am.  Eep.  296 273,  274 

Learned  Letcher  Lumber  Co. 
V.    Fowler,    109   Ala.    169, 

19  So.  396 276,  279 

Leavitt  v.  Thompson,  52  N. 

Y.  62    288 


Ledbetter  v.  State,  35  Tex. 

Crim.  195,  32  S.  W.  903.  .251 
Lederman,  Ex  rel.,  v.  War- 
den of  City  Prison,  152  N. 

Y.  Sup.  977 68 

Lewis  V.  Tyler,  23  Cal.  364.283 
Lewiston  Steam  Mill  Co.  v. 

Androscoggin  Water  Pow- 
er Co.,  78  Me.  274,  4  Atl. 

555    119 

License  Cases,  5  How.  504.  .146 
Lindon    v.    Hooper,    Cowp. 

414  287 

Line  v.  Mills,  12  Ind.  App. 

100,  39  N,  E.  870 271 

Linnendoll  v.  Doe,  14  Johns. 

221     249 

Linney  v.   State,   6   Tex.   1, 

55  Am.  Dec.  756 253 

Little    V.    Town    of    Lenoir, 

151   N.  C.  415,   66   S.  E. 

337    38 

Littlejohn    v.    Arbogast,    95 

111.   App.   505    88 

Lockwood   V.    Bull,    1    Cow. 

322 274 

Logan  V.  Marquess,  53  Ind. 

16    288 

Loomis  V.   Beese,   148   Wis. 

647,  135  N.  W.  123 260 

Lord  V.  Jones,  24  Me.  439.  .104 
Louisiana  v.  Texas,  176  U. 

S.  1 139,  147 

Love  V.  State,  15  Tex.  App. 

563  251,  252 

Love  joy  v.  Jones,  30  N.  H. 

164  280,  290 

Lowe  V.  Conroy,  120  Wis. 

151,  97  N.  W.  942 

132,  145,  151 

Lower  v.  Franks,   115   Ind. 

334,   17   N.   E.   630 88 

Maclin's  Case,  3  Leigh,  809.233 


TABLE  OF  CASES  CITED 


301 


Mahle   v.   State,    (Tex.)    13' 

S.  W.  999 255 

Mahler    v.    Holden,    20    111. 

363    288 

Maier,    Ex   parte,    103    Cal. 
476,  37  Pac.  402,  42  Am, 

St.  K.  129  231 

Malaney  v.  Taft,  60  Vt.  571.275 
Marshall  v.  Bahnsen,   1  Ga. 

App.  485,  57  S.  E.  1006..  102 
Maxwell  v,  Swigart,  48  Neb. 

789,  67  N.  W.  789   95 

Mayer  v.  Kloepfer,  69  Atl. 

182 233,  260,  274 

Maynard  v.  Maynard,  49  Vt. 

297  245 

Mazetti  v.  Armour  &  Co.,  75 

Wash.  622,  135  Pac.  633.  .200 
MeCandless    v.    MeWha,    22 

Harris   (Pa.),  261 92 

McCarthy  v.  Wolfe,  40  Mo. 

520   278 

McCarty  v.  Blevins,  5  Yerg, 
(13   Tenn.)    195,   26   Am. 

Dec.  262   248,  249 

McClallen     v.     Adams,     36 

Mass.   333    89 

McClure  v.   Sheek,   68    Tex. 

426,  4  S.  W.  552 251 

McCorkell    v.     Karhoff,     90 

Iowa,  545  245 

McCoy    V.    Hock,    37    Iowa, 

436   105,  281 

McCrory  v.  Skinner,  2  Ohio 

Dec.   268    81 

McDerment  v.   Taft,  83  Vt. 

249,   75  Atl.   276 230 

McDermott     v.     Wisconsin, 

228  U.  S.  115 146 

Mclntyre   v.    Lockridge,    28 

U.  C.  Q.  B.  204 287 

McKeen  v.  Converse,  68  N. 
H.  173,  39  Atl.  435 288 


McKleroy  v.  Sewell,  73  Ga. 

657    95 

McMaster    v.     Merrick,     41 

Mich.  505,  2  N.  W.  895..  110 
McMillan  v.  Andrew,  50  111. 

282   288 

McNeU  V.  Davidson,  37  Ind. 

336    117 

McPherson  v.  James,  69  111. 

App.  337    288 

McQuaid   v.   Eoss,    85    Wis. 

492    244 

Medlin  v.  Wilkinson,  81  Ala. 

147     280 

Medsker    v.    Pogue,    1    Ind. 

App.  197,  27  N.  E.  432.. 259 
Merchants'     &    Mech.    Sav. 
Bank  v.  Fraze,  9  Ind.  App. 

161    244 

Merritt   v.    People,    169   HI. 

218,  48  N.  E.  325 231 

Mesa  de  Mayo  L.  &  L.  S, 
Co.  V.  Hoyt,  24  Col.  App. 
279,  133  Pac.  471.  ..  .152,  260 
Metcalf  V.  St.  Louis,  11  Mo. 

102    149 

Mexal  V.  Dearborn,  12  Gray, 

336    110 

Midland  Valley  E.  E.  Co.  v. 
State,   35   Okla.   672,   130 

Pac.   803    1"9 

Miller  v.  Burch,  32  Tex.  208  36 
Miller  v.  Horton,  152  Mass, 
540,  26  N.  E.  100,  10  L. 

E.  A.  116 

27,  36,  85,  131,  145,  151,  154 
Miller   v.    State,    105   Mass. 

777,  63  S.  E.  209 57 

Milligan  v.  Wehinger,  68  Pa. 

St.  235   261 

Mills  V.  N,  Y.  etc.  Ey.  Co.,  2 

Eob.  (N.  Y.)  326 260 

Minnesota    v.    Barber,     136 
U.  S.  313 14,  200 


302 


TABLE  OF  CASES  CITED 


Minneapolis,  St.  P.  &  S.  S. 

M.  E'y.  Co.  V.  Milner,  57 

Fed.  276 148 

Mock  V.  KeUy,  3  Ala.  387. .  92 
MorrUl  v.  Jones,  106  U.  S. 

466    10 

Morrison   v,    Altig,    134    N. 

W.  529;  reversed  on  re- 
hearing,   157    Iowa,    265, 

138  N.  W.  510 74 

Morse  v.   Patterson,   1   Kas. 

App.  577,  42  Pae.  255 248 

Mucci  V.  Houghton,  89  Iowa, 

608,  57  N.  W.  305 71 

MuUett  V.  Mason,  H.  &  E. 

779   241 

Murdoek  v.   Walker,   43   111. 

App.  590    83 

Murgoo  V.  Cogswell,  1  E.  D. 

Smith,  359   287 

Murray    v.     Trinidad     Nat. 

Bank,  5  Col.  359,  38  Pac. 

615    252 

Murray  v.  WUliams,  121  Ga. 

63,  48  S.  E.  686 94 

Musser's  Exr.  v.  Chase,  29 

Ohio,    577    87 

Myers  v.  Holborn,  58  N.  J. 

L.  193,  33  Atl.  383 80 

Nehr  v.  State,  35  Neb.  638, 
53  N.  W.  589,  17  L.  R. 
A.  771   98,  233 

Nelson  v.  Harrington,  72 
Wis.  591,  40  N.  W.  228       77 

Nelson  v.  Minneapolis,  112 
Minn.  16,  127  N.  W.  445 
11,   154,   171 

Nelson  v.  State  Board  of 
Health,  22  Ky.  L.  438, 
50  L.  R.  A.  386,  57  S.  W. 
501    52 

Newcastle  v.  Grubbs,  171 
Ind.  482,  86  N.  E.  757..   36 


New   Decatur   v.    Berry,   90 

Ala.  432   149 

New  Orleans  v.  Sanford,  69 

S.  W.  35,  (137  La.  — .)..160 
Nichols    V.    Duncan,    11    U. 

C.  Q.  B.  332 105 

Niles,  Ex  rel.,  v.  Smith,  62 

Fla.  93,  57  So.  426 167 

Nishimura    Ekiu    v.    United 

States,  142  U.  S.  651 62 

Norton    v.    Shelby   Co.,    118 

U.    S.   425 138 

Oehler  v.  Levy,  234  111.  595, 

85  N.  E.   271 33 

O'Hara   v.    Wells,    14   Neb. 

403,   15  N.  W.  722 75 

Ohlweiler    v.    Lohmann,    82 

Wis.  198,  52  N.  W.  172.  .274 
Orr   v.   Meek,    111   Ind.   40, 

11  N.  E.  787 94 

Orser  v.  Storms,  9  Cow.  687.248 
Osborn  v.   Bank,   9   Wheat. 

738    138 

Packard  v.  Slack,  32  Vt.  9.  .242 
Parker  v.  King,  Ga.  Dec.  pt. 

1,  131 288 

Parker  v.  Mise,  27  Ala.  480, 

62  Am.  Dec.  776 233 

Parks  V.  State,  159  Ind.  211, 

64  N.  E.  862 54 

Patten    v.    Wiggin,    51    Me. 

594,  81  Am.  Dec.  593.. 75,  92 
Pearson  v.  Zehr,  138  111.  48 

36,  154 

Peek  V.  Brewer,  48  111.  54.  .279 
Peck  V.  Hutchinson,  88  Iowa, 

320,  55  N.  W.  511 76,  82 

Peer  v.  Ryan,  54  Mich.  224, 

19  N.  W.  961 259 

Peirce   v.    New    Hampshire, 

5  How.  504 146 


TABLE  OF  CASES  CITED 


303 


Pepke    V,     Grace    Hospital, 

130  Mich.  493,  90  N.  W. 

278    77 

People    V.    Apflebaum,    251 

lU.  18,  95  N.  E.  995 52 

People  V.  Arensberg,  105  N. 

Y.  123,  11  N.  E.  277 197 

People  V.  Buffalo  Fish  Co., 

164  N.  Y.   93,  58   N.  E. 

34   232 

People  V.  Frudenberg,  140 

N.  Y.  Sup.  17 172 

People    V.    Grace    Hospital, 

130  Mich.   493,  90  N.  W. 

278    77 

People  V.  Holtz,  92  HI.  426.   54 
People  V.  Eoff,  3  Park.  Grim. 

Gas.  216   149 

People  V.  Tait,  261  HI.  197, 

103  N.  E.  750 144 

People  V.  Umlauf,  88  Mich. 

274,  50  N.  W.   251 247 

People  V.  William   Henning 

Go.,   260  HI.   554,   103   N. 

E.   530    197 

People    ex    rel.     See    under 

first  name. 
Perham  v.  Goney,  117  Mass. 

102 273 

Perionowsky   v.   Freeman,   4 

Foster  &  Finlason,  977. .  .    79 
Phelps  V.   Racey,  60  N.   Y. 

10    231 

Pierson   v.    Hoag,   47   Barb. 

243    120 

Pike  V.  Honsinger,  155  N,  Y. 

201     79 

Pinkham  v.  Libbey,  93  Me. 

575,  45  Atl.  823,  49  L.  E. 

A.  693  257 

Piper  V.  Menifee,  12  B.  Mon. 

465   85 

Pisani,    Ex   rel.,   v.    McKel- 

way,  148  N.  Y.  Sup.  818.   57 


Pitehcock    v.    Donnahoo,    70 

Ark.  68,  66  S.  W.  145 258 

Poag  V.  State,  40  Tex.  151.  .252 
Poage  V.  State,  43  Tex.  454.251 
Poindexter  v.  Greenhow,  114 

U.   S.    270 138 

Polinsky    v.    People,    73    N. 

Y.   65    172 

Pollak  V.  Gregory,  9  Bosw. 

116    121 

Porges  Y.  Jacobs,  (Ore.)  147 

Pac.  396 36,  38 

Potter   V.    Virgil,    67    Barb. 

578    72 

Powers    V.    Botts,    58    Mo. 

App.  1 109,  281,  289 

Prevosty  v.  Nichols,  11  Mart. 

(0.  S.)  21 93 

Price  V.  Pepper,  76  Ky.  42.257 
Puckett    V.    Alexander,    102 

N.  G.  95,  8  S.  E.  767,  3 

L.   R.   A.  43 94 

Putnam  v.  Wyley,  8  Johns. 

432,  5  Am,  Dec.  346.248,  249 

Rankin   v.    Shepherdson,    89 

HI.    445    280 

Rasmussen  v.  State  of  Idaho, 

181   U.   S.   198 150 

Rayl  V.  Kreilich,  74  Mo.  App. 

246    278 

Reese  v.  State,  43   Tex.   Cr. 

539,  67  S.  W.  325 251 

Eeetz   V.   Michigan,    188   U. 

S.    505    46 

Reg.  V.  Henson,  1  Dears,  24 

240,    260 

Ressequie  v,  Byers,  52  Wis. 

650    87 

Reynolds  v.  Smith,  148  Iowa, 

264,   127  N.  W.   192 79 

Rice  V.  Underwood,  27  Mo. 

551    288 


304 


TABLE  OF  CASES  CITED 


Kigbers  v.  City  of  Atlanta, 
7  Ga.  App.  411,  66  S.  E. 
991    166 

Eitchey  v.  West,  23  111.  385.    73 

Eobbins  v.  Magoon  &  Kim- 
baU  Co.,  153  N.  W.  13 
260,  261,  274 

Robertson  v.  Brown,  1  U.  C. 
Q.  B.  345 271 

Eobinson  v,  Eohr,  73  "Wis. 
436    133 

Eoelker,  In  re,  1  Sprague, 
276    122 

Eogers  v.  State,  9  Tex,  App. 
43    254 

Eosenheim  v.  American  In- 
surance Co.,  33  Mo.  230.  .118 

Eosswell  V.  Cottom,  31  Pa. 
St.  525 265 

E'othwell  V.  Milner,  8  Mani- 
toba, 472    241 

Eoyal  Col.  of  Vet.  Surgeons 
V.  CoUinson,  77  L.  J.  K.  B. 
689,  (1908)  2  K.  B.  248..   67 

Eoyal  Col.  of  Vet.  Surgeons 
V.  Groves,  57  J.  P.  505...  67 

Eoyal  Col.  of  Vet.  Surgeons 
V.  Eobinson,  61  L.  J.  C. 
146,  (1892)  1  Q.  B.  557..   66 

Saint  Louis  v.  Jud,  236  Mo. 
1,  139  S.  W.  441 197 

Saint  Louis  v.  Polinsky,  190 
Mo.   516 197 

Salem  v.  Eastern  E.  Co.,  98 
Mass.  431 151 

Salzenstein  v.  Mavis,  91  111. 
391 5,  148,  149 

Sanford  v.  Kimball,  106  Me. 
355,  76  Atl.  890.  (Ee- 
porter  gives  name  incor- 
rectly as  "Sanborn.").  .278 

Sawyer  v.  Gerrish,  70  Me. 
254,  25  Am.  Eep.  323,  Am. 


Eng.    Enc.    of    Law,    349 

248,  258 

Scarf  e  v.  Morgan,  4  M.  &  W. 

270 108,  258 

Schaar  v.  Comforth  (Minn.), 

151  N.  W.  275 261 

Schroeder  v.  Faires,  49  Mo. 

470    260 

Scott    V.    Hogan,    72    Iowa, 

614,  34  N.  W.  444 259 

Scott   V.    Mercer,    63    Iowa, 

325    285 

Scott    V.    Mercer,    98    Iowa, 

258,  67  N.  W.  108 285 

Scott  V.  E'enick,  1  B.  Mon, 

63    244 

Seale  v.   McCarty,   148  Cal. 

61,  82  Pac.  845 284 

Seavey  v.  Preble,  64  Mo. 

120  151 

Seigle   V.   Bromley,   22    Col. 

App.  189,  124  Pac.  191. . .  32 
Sentell  v.  New  Orleans,  etc., 

E.  Co.,  166  U.  S.  698.. 98,  230 
Seymour  v.  United  States,  2 

App.  D.  C.  240 133 

Sheridan  v.   Bean,   8   Mete. 

284    260 

Sherrod  v.  Langdon,  21  Iowa, 

518    242 

Shields   v.   Dodge,    14  Lea, 

356    285 

Shipman  v.  State  Live  Stock 

Commrs.,  115  Mich.  488..  151 
Shivers  v.  Newton,  45  N.  J. 

L.  469 154,  173 

Sholl,  Ex  rel.,  v.  Duncan,  162 

Ala.  196,  50  So.  265 145 

Siglin  v.  Coos  Bay  E.  &  E.  E. 

&  N.  Co.,  35  Ore.  79,  56 

Pac.    1011 266 

Sims  v.  Bradford,  80  Tenn. 

434  254 


TABLE  OF  CASES  CITED 


305 


Simpson  v.  Shepard,  33  (U. 

S.)  Sup.  Ct.  729,  230  U. 

S.  352 148 

Sisk  V.  Crump,  112  Ind.  504, 

14  N.  E.  381 265 

Bkinner  v.  Caughey,  64  Minn. 

375,  67  N.  W.  203 284 

Slaughter   v.    State,   7   Tex. 

App.   123 253 

Small  V.  Howard,  128  Mass, 

131    76 

Smith  V.  Green,  1  C.  P.  D. 

92    241 

Smith    V.    Justice,    13    Wis. 

600    244 

Smith    V.    Lowe,    121    Fed. 

753    150 

Smith  V.  Kobertson,  106  Ky. 

472,  50  S.  W.  852,  20  Ky. 

Law,    1959,   45   L.  R.   A. 

510    255 

Smith  V,  St.  Louis  &  S.  W. 

E.  Co.,  181  U.  S.  248..  14,  150 
Smith  V.  State,  155  Ind.  611, 

58  N.  E.  1044,  51  L.  R.  A. 

404    231 

Smothers  v.  Hanks,  34  Iowa, 

286,  11  Am.  Eep.  141 76 

Somme,  In  re,  136  N.  Y.  Sup. 

57    51 

Sopher    v.    State,    169    Ind. 

177,  81  N.  E.  913 31 

Southern  Ry.  Co.  v.  Poetker, 

46  Ind.  App.  295,  91  N. 

E.  610  38 

Spa  V.  Ely,  8  Hun,  255 84 

Spinney,  Ex  parte,   10  Nev. 

323  46 

Spooner  v.  Manchester,  133 

Mass.  270 280 

Spriggs,  Ex  rel.,  v.  Robin- 
son, 253  Mo.  271,  161  S. 

W.  1169 00 


Stanberry   v.   Dickerson,   35 

Iowa,    493 117 

Stanfield  v.   StUtz,   93   Ind. 

249    247 

Starrett    v.    Miley,    79    111. 

App.   658 96 

Staples   V.    Steed,    167   Ala. 

241,  52  So.  646 83,  114 

State  V.  Butts,  3  S.  Dak.  577, 

19  L.  R.  A.  725,  54  N.  W. 

603    139 

State  V.  Call,  121  N.  C.  643, 

28  S.  E.  517 49 

State  V.  Cardelli,  19  Nev.  319, 

10  Pae.  433 251,  252 

State  V.  Collingsworth  Sew- 
erage   Co.,    85    N.    J.    L. 

567,  89  Atl.  525 40 

State  V.   Crescent  Creamery 

Co.,   83   Minn.   284,  54  L. 

R.  A.  466,  86  N.  W.  107.  .167 
State  V.  Davis,  24  N.  C.  153.253 
State  V.  Duckworth,  5  Ida. 

642,  51  Pac.  456 150 

State  V.  Fox,  79  Md.  514. .  .240 
State  V.  Gregory,  83  Mo.  123  52 
State  V.  Hathaway,  115  Mo. 

36,  21  S.  W.  1081 46,  49 

State  V.  Haws,  41  Tex.  161.254 
State     V.     Hutchinson     Ice 

Cream  Co.,  147  N.  W.  195.166 
State  V.  K.  C.  M.  &  B.  Co. 

(Ark.),  174  S.  W.  248...  12 
State  V.  Lutz,  136  Mo.  633, 

38  S.  W.  323 52 

State  V.   Matthews,   20  Mo. 

55    253 

State  V.  Milwaukee,  140  Wis. 

38,  121  N.  W.  658 168 

State  V.  Niles,  78  Vt.  266, 

62  Atl.  795,  112  Am.  St. 

R.    917 231 

State  V.  Rodman,  58   Minn. 

395,  59  N.  W.  1098 231 


306 


TABLE  OF  CASES  CITED 


state  V.  St.  P.  M.  &  O.  R. 

Co.,  40  Minn.  267,  40  N. 

W.  1047 147 

State  V.  Schmuek,  77  Ohio, 

438,  83  N.  E.  797 173 

State  V.  State  Medical  Ex. 

Bd.,  32  Minn.  324,  20  N. 

W.  238 49,  60 

State    V.    Swayze,    11    Ore. 

357,  3  Pac.  574 254 

State   V.   Teipner,   36   Minn. 

535,  32  Minn.  678 122 

State     V.     Vandersluis,     42 

Minn.  129 54 

State  V.  Van  Doran,  109  N. 

C.  864,  14  S.  E.  32 54 

State  V.  Yopp,  97  N.  C.  477, 

2  S.  E.  689 131,  134 

State    Board    of    Health    v. 

Greenville,  86  Ohio,  1,  98 

N.  E.  1019 38,  149 

State  Medical  Board  v.  Mc- 

Crary,  95  Ark.  511,  130  S. 

W.    544 60 

Sternberger  v.  Cape  Fear  & 

Y.    V.    R.    R.    Co.,    29   S. 

C.  510 147 

Stevens  v.  Bradley,  89  Iowa, 

174    241 

Stewart  v.  Ball,  33  Mo.  154  24S 
Stewart   v.    Davis,    31    Ark. 

518 275 

Stewart  v.  Hunter,  16  Ore. 

62,  16  Pac.  876,  8  Am.  St. 

R.    267 251 

Sturgeon  v.  Merritt,  49  Mo. 

App.   160 255 

Sturtevant  v.  MerrUl,  33  Me. 

62    265 

Styles  V.  Tyler,  64  Conn.  432, 

30  Atl.   165 87,  92 

Summers    v.    State,    5    Tex. 

App.  365 121,  122 


Sumner  v.  Beeler,  50  Ind. 
341    138 

Tabor   v.    Salisbury,   3   Col. 

App.  335,  33  Pac.  190... 286 
Taggard    v.    Buekmore,    42 

Me.   77 282 

Talbot    V.    Magee,    59    Mo. 

App.   347 249 

Tandy  v.  Elmore  Cooper  L. 

S.  Com.  Co.,  113  Mo.  App. 

409,  87  S.  W.  614 283 

Taylor  v.  Adair  Co.,  119  Ky. 

374    139 

Taylor  v.  Gardiner,  8  Mani- 
toba,  310 244 

Taylor    v.    State,    35    Tex. 

496    254 

Teft  V.  Wilcox,   6  Kas,   46 

76,    92 

Thomas  v.  Ingham  Co.  Sup- 
ervisors,   142    Mich.    319, 

105  N.  W.  771 145 

Thomas  v.   State  Board  of 

Health,    72    W.   Va.    776, 

79  S.  E.  725 57 

Thompson  v.  Harlow,  31  Ga. 

348 271,    273 

Thompson  v.  Hazen,  25  Me. 

104    49 

Thompson  v.  State,  26  Tex. 

App.   466 250 

Thompson  v.  Von  Lear,  77 

Ark.    506 61 

Thurlow  v.  Massachusetts,  5 

How.    504 146 

Tish  V.  Welker,  7  Ohio  N.  P. 

472    81 

Tomer  v.  Aikin,  126  Iowa, 

114,  101  N.  W.  769 80 

Towle  V.  R'aymond,  58  N.  H. 

64    285 

Tucker  v.  Constable,  16  Ore. 

407,  19  Pac.  13 259 


TABLE  OF  CASES  CITED 


307 


Tuttle    V.   Dennis,    58    Hun, 
35,  11  N.  Y.  Sup.  600 258 

Underwood    v.    Birdsell,    6 

Mont.  142,  9  Pac.  992 284 

Underwood  v.  Scott,  43  Kas. 

714,  23  Pac.  942 94 

United  States  v.  Eaton,  144 

U.  S.  677 10 

United  States  v.  Howe,   12 

Cent.  L.  J.   193 122 

United  States  v.  Lee,  106  U. 

S.  196 138 

Uren  v.  Walsh,  57  Wis.  98.  .133 

A'antreese  v.  McGee,  26  Ind. 
App.  525,  60  N.  E.  318.. 232 

Wales  V.  Ford,  8  N.  J.  L. 

267    265 

Walker  v.  Cook,  33  111.  App. 

561    116 

Walker    v.    Hoisington,    43 

Vt.    608 243 

Ward  V.  Brown,  64  111.  307.265 
Ward  V.  Hobbs,  4  App.  Cas. 

13    240 

Warring  v.  Cripps,  23  Wis. 

460    287 

Washburn     v.     Cuddihy,     8 

Gray,    430 243 

Watson  V.   Denton,   7   C.  & 

P.    85 242 

Watson    V.    Maryland,    105 

Md.  650,  66  Atl.  635 46 

Waye  v.  Thompson,  15  L.  E. 

Q.  B.  D.  342 151 

Webb  V.  Page,  1  C.  &  P.  23 .  122 
Weber   v.   Hartman,    7    Col. 

13,  1  Pac.  230 288 

Weber  v.  Whetstone,  53  Neb. 

371,  73  N.  W.  695 

109,   284,   289 


Weide  v.  Thiel,  9  111.  App. 

223    264 

Weigand      v.      District     of 

Columbia,  22  App.  D.  C. 

559    167 

Weinsberg  v.  St.  Louis  Cord- 
age Co.,  135  Mo.  App.  553, 

116  S.  W.  416 96 

Wells  V.  Littlefield,  59  Tex. 

556    250 

Wells  V.  State  (Tex.),  13  S. 

W.  889 255 

Wells  V.  World's  Dispensary 

Med.  Assn.,  9  N.  Y.  452 .  .  76 
West  V.  Martin,  31  Mo.  375.  76 
Whidden  v.   Cheever,   69   N. 

H.  142,  44  Atl.  908 151 

White  V.  Carroll,  42  N.   Y. 

161    52 

White  V.  Mastin,  38  Ala.  147  99 
White    V.    Stelloh,    74    Wis. 

435    244 

Whitesell  v.  Hill,  66  N.  W. 

894   76,  95 

Whitlock  V.  Heard,  13  Ala. 

776,  48  Am.  Dec.  73 286 

Whitney  v.  Taylor,  54  Barb. 

536    243 

Willard  v.  Whinfield,  2  Kas. 

App.  53,  43  Pac.  314 

109,  286,  289 

Williams  v.  Frazier,  41  How. 

Pr.    (N.  Y.)    428 279 

Williams  v.  Oilman,  71  Me. 

21    83 

Williams  v.  People,  121  111. 

84    54 

Williams    v.     Poppleton,     3 

Ore.    139 75 

Williams  v.  State  Board  of 

Med.  Exrs.,  120  Minn.  313, 

139  X.  W.  500 57 

Wills    V.    Barrister,    36    Vt. 

220    283 


308 


TABLE  OF  CASES  CITED 


"Wilson    V.    Alabama,    G.    S. 

Ey.  Co.,  77  Miss.  714,  28 

So.    567 139 

Wilson  V.  Finney,  13  Johns. 

358    276 

Wilson  V.   McLaughlin,  107 

Mass.    587 287 

Winn  V.  Morris,  94  Ga.  452.242 

Winner  v.  Lathrop,  67  Hun, 
511    87 

Winsor  v.  Lombard,  18  Pick. 
57    200 

Wise  V.  State  Veterinary 
Board,  138  Mich.  428,  101 
N.  W.  562 49 

Wolf  V.  Board  of  Med. 
Exrs.,  109  Minn.  360,  123 
N.  W.  1074 62 

Wolf  V.  Wall,  40  Ohio,  111.   81 

Wolseheid  v.  Thome,  76 
Mich.  265,  43  N.  W.  12.. 271 

Wong  Wai  v.  Williamson, 
103   Fed.   1 139 


Wood  V.  Ash  (Eng.),  Owen, 

139    248 

Woodard  v.  Myers,  15  Ind. 

App.  42,  43  N.  E.  573 286 

Woolf  V.  Chalker,  31  Conn. 

121,  81  Am.  Dec.  175 233 

Wright  V.  Eichmond,  21  Mo. 

App.   76 288 

Wright    V.    Sherman,    3    S. 

Dak.  290,  52  N.  W.  1093, 

17  L.  E.  A.  792 286 

Wright  V.  Waddell,  89  Iowa, 

350,  56  N.  W.  650 

109,   285,  289 

Yates  V.  Milwaukee,  10  Wall. 

497    30 

Yearsley  v.    Gray,    140    Pa. 

St.  238,  21  Atl.  318 281 

Yoakum    v.    State,    21    Tex. 

App.  260,  17  S.  W.  254.. 254 

Zanetta    v.    Bolles,    80    Vt. 
345,  67  Atl.  818 230 


INDEX 


ActinomycoBis,  Meat  condemned  for 191 

Agister,    Definition    104 

Liens  of    104,  283 

Alienum  non  laedat    23,  60 

Basis  of  idea  of  nuisance 23 

Animals — 

Frightening    266 

Ferae   naturae    231 

Importation  of   186 

From  North  America   187 

Injuries — 

By  fence 265 

On    highway    266 

Owner,  Duty  to  restrain  262 

Liability  of 151,   156,   164,  260 

Ownership  of — 

Dead     231 

Domestic    229 

Game     230 

Obtained  by  capture  234 

Gift  235 

Increase    247-249 

Inheritance    234 

Killing    234 

Purchase     237 

Proof  of 249 

Marks  and  brands,  see  Brands. 

Qualifications   of    232 

WDd    229 

Sale  of   237 

Bill  of  sale  246 

Warranty  of  character  244 

Warranty  of  soundness 239 

Transportation  of  175-188 

With  infectious  disease,  Keeping  of,  not  per  se  culpable 
152,  156 

309 


310  INDEX 

Anthrax,  Animal  must  be  destroyed 190 

Spread  by  overflowed  pasture 142 

Appeals,  Courts  of 18 

In  diagnosis    144 

In  license 62,  216 

Slaughterhouse  inspection    196 

Arbitrary  acts  illegal   13 

Not   discretion    134 

Slaughterhouse   inspection    195 

Bacillus  mallei   119,  145,  241 

Bailee — 

Actions  for  liability  of   278 

Care  required  of    270 

Ordinary  care,  What  is 272 

Conversion     279 

Definition    105,  268 

Duty  to  return  animal 105,  106,  209,  272,  276,  279 

Illegal  sale  by    289 

Liability   of    273 

Eeceipt  of   108 

Eight  to  use  animal 277 

Veterinarian   as    105 

Bailment,   A  contract    105,  108,  269 

Definition     105,  268 

Distinguished  from  sale  or  gift 276 

Implies  knowledge  of  bailee   270 

Bailor,   Definition    105,  268 

Duty  of    272 

May  not  be  owner  269 

Warranty  of    275 

Bill  of  sale  246 

Biologic  products- - 

Evidence  of  infection    203 

Governmental  supervision    201-205 

Liability  for   202 

Necessity  for  care    77,  202 

Bonham  's  case   45 

Brands — 

Altering  of    253 

Eecords    of    250 

Sale  of   252 

Unrecorded,  Evidence  of  ownership 251 

Wrongful  branding    254 


INDEX  311 

Breeding,  see  Stallion. 

Butchers,  Reports  by  5,  253 

Caveat  emptor   239,  241 

Chicken  feed   194 

City- 
Jurisdiction  in  sanitation 6,  134,  146,  149 

Ordinances   10,  11,  137 

Eegulating   milk    11,  137 

Slaughterhouses    199 

Common  law,  Defined   4 

Compensation  for  professional  service  of  veterinarian — 

Actions  for  recovery  of Ill 

Amount   of    102 

Effect  of  malpractice  on   95 

Liens  for,  see  Liens. 

Of  expert  witness   120-125 

Use  of  mails  in  collection 103 

Who  liable  for 70,  91,  95,  102 

Condemnations  of  meat  190-198 

Constitutions  defined   4 

Conversion,  see  Bailment. 

Delegation  of  authority 15,  139 

Dipping  of  animals   143 

Discretionary   duties    15 

Cannot  be  delegated 139 

Distrainment     288 

Division  of  powers 7 

Dogs    232 

Importation  of    187 

KUling  of    6 

Liability  for  service  to 97-98 

Muzzling   of    12 

Ownership   of 230,  232-234 

Owner 's  liability  for  injury  by 233 

Dourine — 

Animal  not  to  be  transported   182 

Communicated  by  flies  142,  183 

Liability  in  breeding   256,  259 

Driving  from  range,  When  criminal,  or  not 254 

Due  process  of  law,  Definition 27 

Destruction  of  property  151 


312  INDEX 

E  strays — 

Liens  for   287 

Ownership    acquired    236 

Sale  of  288 

Evidence  (See  also  Witness )--- 

Biologic   infection    204 

Burden  of  proof 86 

License     58,  113 

Ownership  of  animals   249-254 

Eight  to  practice  113 

Services  rendered  112 

Executive — 

American  system  unsatisfactory  206 

Authority  of   7 

Boards    207 

Health  department  218-225 

Orders,  Force  of   9 

Paid    211 

Permanency  of  office 212 

Trained    210 

Fences    262 

Barbed  wire 265 

Fly,  a  nuisance  per  se  33-35 

Foot  and  mouth  disease — 

Spread  through  serum   202 

Transportation  prohibited    184 

Garbage,  may  be  a  nuisance  32 

Gelding,  Death  after  83 

Liability  for   259 

Lack  of,  not  unsoundness  243 

General  disease,  condemnations  of  meat  for 191 

Glanders,  Animal  infected  with — 

Diagnosis  of    145 

Killed  for.  Liability  27,  131 

Not  to  be  transported  183 

Sale  of    239-241 

Witness,  In  re 119 

Governmental  control  129  et  seq. 

Appointment  of  veterinarians  in  B.  A.  1 176 

Biologic  products    201-205 

Dairy    business    166-175 

Practice  of  veterinarian    43-68 


INDEX  313 

Governmental  control  (continued)  — 

Quarantine    138,  162 

Slaughterhouses  and  meat  industry   188-198 

Antemortem  examination   189 

Postmortem    examination    189-198 

Transportation   of  live  stock 175-188 

Liability  of  Department  of  Agriculture 181 

Protection  of  inspectors  180 

Health  department —    ^ 

Legislation,  Guidance  by   224 

Organization  of,   State   219 

Organization  of,  City   221 

Eecords     223 

Reports     223 

Veterinarians  in   218-221 

Hog- 
Infection  of  cholera  serum 65,  202,  203 

Inspection  for  slaughter   191 

Eanch  a  nuisance  32 

Transportation  of    182 

Judiciary — 

Authority,    General    7 

Authority  over  legislation   12 

Decisions    17 

Legislative   authority    7 

Of  health  department  224 

Liability — 

Of  bailee    106 

Of  one  calling  veterinarian    70,  91 

Of  owners  of  animals,  general 260 

For  spread  of  infectious  disease 151,  156-164 

Of  owners  of  stallions    259 

Of  veterinarians,   Ordinary    75 

Accidents    84 

Acts  of  assistants    78 

Death  after  gelding 83 

Injury  in  throwing  animal 83 

Malpractice    82 

Partnership    80 

Proof   of    86 

Special  cases  of  85 


314  INDEX 

Liability   (continued) — 

Of  veterinarians  (continued) — 

Spread  of  infection  205 

Survival  of  action 81 

Unauthorized  operation   89,  259 

Under  enactments   89 

Defense  in  actions — 

Contributory  negligence    88 

Illegal  practice  88 

Payment  of  fees  88 

License — 

Board,  Appointment  of   53,  214 

Attorney  for   63 

Dairy   business    367-173 

Document  57 

Of   Veterinarians    47 

Appeals    216 

Eevocation    59 

Unlicensed,   no   rights 94 

Liens — 

Agister 's    283 

Common  law    104 

Contract   107 

For  breeding  258 

For  estrays  and  trespassing  animals 287 

General    281 

Lost  cannot  be  revived   290 

Not  a  right  to  sell 110 

Of  bailee    280 

Of  trainer    285 

Of  veterinarian     103 

Priority  of  right    285 

Eight  of  sale   286,  289 

Statutory    104 

Not  retroactive  105 

Voiding  of 119 

Waiver    of    289 

Lip  and  Leg  LHceration — 

Meat   condemned    192 

Transportation    183 

Livery — 

As  a  nuisance    23,  26 

Keeper  as  bailee  or  bailor 268 

Liens 283 


INDEX  315 

Manure  pile,  when  a  nuisance 33 

Ministerial  duties  15 

Milk- 
Authority  of  national,  state  and  city  officers 135 

Authority   of   veterinarians 174 

Bailed  cow  should  be  milked 272 

City  ordinances  regulating   11,  137 

Dairy  inspection   167 

Dairy  products   174 

Destroy,  Eight  of  officers 154,  173 

Need  of  state  regulation 217 

Quality  of    166 

Tuberculin   test    11,  170 

Nation,  Jurisdiction  of,  iu  sanitation 6 

Nuisance — 

Abatement  of    35 

A  question  of  fact   30 

Authority  for  abatement,  not  for  construction 39 

Change  in  legal  standard  of 33 

City  must  not  commit   38 

Civil  suit   37 

Criminal    prosecution     35 

Definition  of    28 

Determination   of    30-35 

Disease  germs   154 

Flies,  nuisance  per  se    33 

General  treatment  of  35 

Livery  stables    23,  36 

Manure  pUes  33 

May  be  enjoined  before  occurring 23 

Measure  of  damages   38 

Per  se,  in  esse,  and  in  j^osse 29 

Private  or  public 28 

Public  nuisance  per  se  unlawful 31 

Officer  (Also  see  Quarantine)  — 

Arbitrary    actions    prohibited 134 

Authority    limited    by    jurisdiction 134 

Authority   determined  by   legislation 137 

Invalid  act  no  defense  for 137 

Liability    of    130-133,  137 

Of  state  and  nation  at  same  time 159 

Veterinarian  as   129-205 

With  discretion  cannot  be  coerced 133 


316  INDEX 

Police  power — 

Above  private  rights  24 

Cannot  be  alienated 25 

Definition    20 

Destruction  of  property  under 25,  151 

Compensation  for   153 

Appraisement  of  property  157 

National   power   indirect    22 

Eesides  in  the  states   21 

Property — 

Acquired    how    229-237 

Destruction  of 151 

No  right  when  acquired  or  used  contrary  to  law 26 

Taken  under  eminent  domain  1 

Taken  under  police  power  2,  25 

Quarantine  138 

Authority  cannot  be  delegated 139 

Diagnosis  for    144 

Does  not  depend  upon  statute 138 

Dourine     182 

Foot  and  mouth  disease 184 

Glanders   183 

Hog  cholera  and  swine  plague 182 

Jurisdiction    in    146-149 

Lip  and  leg  ulceration 183 

Methods   in    141 

Eegulations  of  B.  A,  1 176-188 

Eegulations  should  be  published 143 

Scabies    150,  182 

Texas  cattle  fever 1 77 

Tuberculosis    183 

Versus  commerce 149 

What  diseases  subject  to 140 

Eats,  a  nuisance  per  se   33-35 

Eecords  of — 

Biologic  products  204 

Brands 250-253 

Health  departments  223 

Services  rendered  112 

Eegistration  of  veterinarians 50 

Time   for    50,  51 

Bespondeat  superior   79,  95 


INDEX  317 

Scabies — 

LiabUity  for  85,  101,  152,  260 

Quarantine  for    150,  182 

Transportation    182 

Sewage,  a  nuisance  38,  40 

Need    of    state    supervision 217 

Slaughterhouses — 

Common  law    200 

Federal   supervision    188-198 

Condemnations   190-198 

Meat  inspection 197 

Prosecutions    196 

Sterilization     195 

Intrastate  Industries   198 

Municipal  control  199 

State  control  200 

StaUions,  etc. — 

Insurance  of  get   257 

Liability  of  owner 259 

Licensed   and   unlicensed    255 

Liens  for  service   258 

Sale  of    244,  245 

Warranty  of  heredity 256 

State- 
Executive    206 

Jurisdiction  over  sanitation 6,  146-149 

Over  veterinary  practice    43 

Over  slaughterhouses  200 

Statutes  defined    5 

National,  in  animal  industry 196 

Sterilization  of  meat  195 

Tapeworms  in — 

Dogs    187 

Meat    193,  194 

Texas  cattle  fever — 

Arbitrary  laws   14 

B.  A.  I.  regulations 177 

Laws   regulating    5 

Liability  for    154 

Tubercular  cattle — 

A  nuisance   37,  155 

Compensation  for    37,  155 

Condemnation  of  meat 190 


318  INDEX 

Tubercular  cattle  (continued) — 

Transportation    183 

Tuberculin  test  11,  170-183 

Unsoundness,  Cases  of    239-240 

Veterinarian  (See  also  Bailment,  Compensation,  Evidence,  Liabil- 
ity, License,  Liens,  Eecords.) — 
Eight  to  practice — 

Appointment  in  B.  A.  1 176 

Appointment  of  license  examiners 53,  214 

Attorney  for  board   63 

Authority  of  nation     22 

Authority  of  state   43-68 

Certificate    55 

License — 

Appeals 216 

Exceptions  in  granting 54 

Granting    of    47 

On  diploma   50 

Reciprocal    55 

Eevocation  of   59 

Standards  for   48 

Practice  as  a  company 67 

Prosecution  of  illegal  practitioners 63,  68 

What  constitutes  practice    64 

Practice  of — 

As  bailee   105 

As  an  officer    129-205 

Competency    92 

Contract  assumed 69 

Does  not  guarantee  a  cure 70 

Gratuitous  service 72 

Liability   75 

Liability  of  illegal  practitioner 88,  89 

Errors  of  judgment 76 

Malpractice    82 

Survival  of  action   82 

Number   of   calls    70 

Obligation  to  attend   70 

Eight  of  action  for  fees 93 

By  illegal  practitioners    94 

Effect  of  malpractice  upon 95 

Skill   required    69,  71 


INDEX  319 

Veterinary  Profession,  status  of 18,  44,  65 

And  medical  profession 212 

Veterinary  schools ;  standards  of 49 

Determination    52 

Warranty  in  breeding — 

Of  get 257 

Of  sound  heredity  256 

Warranty  in  sale — 

Character    240 

Soundness     239 

Witness — 

Duty  to  prepare  115 

Expert   116-125 

Definition  and  scope  of  expert  testimony 117 

Compensation  of    120-125 

Obligation  as    114 

Testimony   of    114 


COLLECTING  BY  MAIL 

By  W.    B.    Parker. 

Slow  and  bad  accounts  cause  the  average  business  or  pro- 
fessional man  much  annoyance  and  loss,  and  are  often  the 
direct  cause  of  bankruptcy.  It,  therefore,  follows  that  any 
method  of  handlin.s:  this  class  of  accounts  that  shows  a  maxi- 
mum of  efficiency  with  a  minimum  of  effort,  friction  and  ex- 
pense  is  worthy  of   serious  consideration. 

This  article  outlines  a  system  that  is  the  result  of  over  fifteen 
years'  experience  of  an  attorney  and  credit  man  for  several  larce 
business  houses.  It  is  adapted  to  either  a  large  or  small  busi- 
ness, and  equally  well  to  accounts  for  professional  services  and 
has  "made  good"  wherever  adopted. 

The  basic  idea  is  that  a  business  man  can,  in  most  instances, 
handle  his  own  collections  to  better  advantage  than  by  turning 
them  over  to  collection  agencies  or  others,  and  that  it  is  neither 
necessary   or   politic   to   use   bluffing  or   intimidating   methods. 

It  has  been  found  that  the  basic  elements  of  a  successful  col- 
lection system  are  persistency  and  courtesy,  not  bluffs  and 
threats.  A  severe  storm,  or  a  series  of  them,  will  have  small 
effect  on  stone,  while  a  constant  dropping  of  water  on  the  same 
spot  will  wear  it  away. 

The  plan  here  outlined  consists  of  five  letters  and  a  legal 
postal  card  follow  up  system,  and  will  keep  after  the  slow 
debtor  over  forty-five  ■  days  at  a  total  postal  cost  of  not  ex- 
ceeding twenty  cents.  The  forms  given  for  the  letters  are  to 
be  written  on  the  letter-heads  of  the  person  or  firm  using  them 
and  the  card  form  on  ordinary  government  postal  cards.  They 
will  not  be  nearly  as  effective  if  printed  and  afterwards  "filled 
in"  and  they  are  so  short  that  it  is  not  at  all  necessary  to  do 
so,  even  where  several  hundred  accounts  are  involved,  as  only 
twenty-five  minutes  of  a  typist's  time  is  required  on  any  one 
account,  even  if  it  is  necessary  to  continue  the  system  to  the 
very   last   card,   which   will   very   seldom   happen. 

\\  hen  intending  to  use  this  system  on  a  certain  number  of 
accounts,  it  is  best  to  make  an  alphabetical  list  of  them  on  a 
long  sheet  of  paper,  noting  the  name,  address,  amount  and  date 
of  the  last  item,  leaving  about  an  inch  of  blank  space  after 
each  account  in  which  to  note  the,  dates  of  mailing  the  form 
letters  and  cards.  When  an  account  is  paid  or  satisfactory  ar- 
rangements made,  it  should  be  crossed  off  the  list,  thus  leav- 
ing a   correct   list   for   the  next   mailing. 

337 


338  SUPPLEMENT 

Letter  No.  1 
IN'Tr.   Slow  Pay, 

Chicago,   111. 
Dear  Sir: — 

In  looking  over  our  books  today  we  find  a  past  due  balance 

standing  against  you  in  the  amount  of  $ ,  running  back 

to  — . 

Will  you  kindly  mail  us  your  check  for  this  amount  or  advise 
us   at  once   if   j'ou   find   the  balance   incorrect? 

Thanking  you  in  advance,  we  remain. 

Yours   very  truly, 


Letter  No.  2 
Mr.  Slow  Pay. 

Chicago,  111. 
Dear  Sir : — 

We   wrote  you  ,  regarding  a  past  due 

balance  on  your  account  of  $ ,  running  back  to  

,  and   so   far  have  received  no  reply. 

Please  let  us  hear  from  you  at  once,  so  that  we  will  know 
whether  you  consider  the  balance  correct,  and  when  we  may 
expect  your  check. 

Very  truly  yours. 


Letter  No.  3 
Mr.  Slow  Pay, 

Chicago,  111. 
Dear  Sir : — 

Our  letters  of  and  regard- 
ing a  past  due  balance  of  $ on  your  account  remain  un- 
answered. 

It  certainly  seems  to  us  that  you  might  at  least  grant  us  the 
courtesy  of  an  answer,  even  if  it  is  inconvenient  for  you  to 
send  us  your  check  just  at  this  time. 

Kindly  favor  us  in  this  regard,  and  oblige, 

Yours  very  truly. 


Letter  No.  4 

Mr.  Slow  Pay, 

Chicago,  111. 
Dear  Sir : — 

We  are  much  surprised  at  your  failure  to  answer  any  of  our 
several  letters  regarding  your  past  due  account.  Our  letters 
have  certainly  been  courteous  and  we  feel  that  we  have  treated 
you  fairly  in  every  way. 

You  know,  of  course,  that  unless  we  hear  from  you  we  will 
be  compelled  to  adopt  other  means  of  collection  which  we  very 
much  dislike  to  do. 


SUPPLEMENT  339 

It  will  save  both  of  us  useless  expense  and  annoyance  if  you 
will  let  us  hear  from  you  at  once,  stating  just  what  you  pro- 
pose to  do. 

The  writer  will  hold  this  account  on  his  desk  until  the  morn- 
ing of ,  and  will  depend  upon  hearing  from 


you  by  that  time. 


Yours  very  truly, 


Letter  No.  5 

Mr.  Slow  Pay, 

Chicago,  111. 
Dear  Sir : — 

As  we  did  not  hear  from  you  this  morning  we  have  fully  de- 
cided to  take  other  steps  to  enforce  settlement  of  that  past  due 
account. 

However,  a  business  acquaintance  advises  us  that  he  believes 
you  to  be  entirely  prompt  and  reliable,  and  we  have  therefore 
decided  to  wait  a  few  days  longer. 

You  must  certainly  realize  that  your  credit  standing  depends 
on  3'our  fair  dealing,  and  fair  dealing  certainly  requires  you  to 
answer  our  letters. 

Of  course,  we  realize  that  it  is  entirely  possible  that  you  have 
neither  received  or  read  our  previous  letters  personally.  In 
view  of  the  statement  referred  to  above  we  shall  expect  to  hear 
from  you  at  once. 

Yours  very  truly, 


Postal   Card  Form 

We  wrote  you  ,  ,  ,  ,  and  .    No 

reply.     Why?     It  is  important  that  we  hear   from  you  at  once. 


Send  the  letters  weekly  and  cards  every  other  day  for  20 
days,  following  letter  No.  5,  allowing  three  days  for  answer  to 
last  letter,  h'ill  in  the  blank  spaces  in  the  second  line  of  card 
form  with  the  dates  of  the  five  preceding  letters,  as  1/1,  1/7, 
1/14,  1/2],  1/28,  thus  making  a  second  line  of  dates,  in  figures. 
Add  notliing  to  the  wording  of  card  form  except  signature, 
which  should  be  written  with  pen,  down  toward  right  hand 
bottom  corner  of  card;  do  not  date.  The  letters  should  be 
single  spaced  between  lines  ;.nd  double  spaced  between  para- 
graphs. 


340  SUPPLEMENT 

It  will  be  noted  that  the  first  three  letters  are  very  short  in- 
deed, and  yet  they  say  all  that  is  necessary  or  advisable  to  say 
at  this  stage  of  the  correspondence,  and  also  ask  a  question  that 
demands  an  answer  whether  the  debtor  is  able  to  pay  just  at 
that  time  or  not.  They  are  so  mild  that  they  can  be  sent  with- 
out giving  offense,  to  perfectly  good,  but  slow,  debtors  and  vet 
they  form  an  effective  basis  for  the  letters  that  follow  to  the 
slower  and  more  doubtful  debtors. 

The  fourth  letter  takes  the  place  of  the  usual  "threat  to  sue" 
letter,  and  is  fully  as  effective,  without  committing  the  writer 
to  any  definite  action  whatever,  but  leaves  the  matter  open  so 
that  he  can  effectively  continue  his  mail  campaign.  The  fifth 
letter  is  a  reversal  of  the  "threat  to  list"  or  let  other  business 
men  know  of  the  indebtedness,  and  is  even  more  effective  with- 
out being  offensive.  It  flatters  instead  of  threatens  and  winds 
up  by  giving  the  debtor  an  excuse  for  his  past  failures  to  re- 
spond to  the  letters  that  have  been  sent  him. 

But  some  men  do  not  read  letters  and  it  does  not  much 
matter  what  you  write  them.  Here  is  where  the  postal  cards 
come  in.  While  they  say  nothing  whatever  about  an  account, 
and  are  consequently  perfectly  legal,  yet  they  furnish  an  inex- 
pensive   form    of    persistency  that   certainly   does   get  results. 

In  conclusion,  it  is  emphatically  stated  that  this  system  will 
not  get  money  from  a  man  who  has  none,  or  secure  any  other 
impossible  result,  but  it  will  brinp'  in  the  most  money  out  of 
the  past  due  hundred  dollars,  if  used  according  to  instructions, 
and  it  certainly  will  not  involve  the  user  in  unnecessary  expense 
or  useless  litigation. 


momef  Family  Library  of  Vetennary  Medicine 

'^■"'""^  School  of  Vetennary  {^Aedidoe  at 

Tufts  University 

200  Westboro  Road 

QterttoGraAQn,  MA  01636 


^?Ji»*,A 


